Appeal 2007-1907
Reexamination Control No. 90/007,178
Patent 6,730,333 B1
1 “Double-Depth” sales. In its policies and procedures manual, XanGo is said
2 to be a “network marketing company.” (Page 1). How much of the
3 commercial success is due to aggressive network marketing in the form of
4 sales commissions and bonuses is unexplained by the Appellants.
5 In ex-parte proceedings before the Patent and Trademark Office, an
6 applicant must show that the claimed features were responsible for the
7 commercial success of an article if the evidence of nonobviousness is to be
8 accorded substantial weight. See In re Huang, 100 F.3d 135, 140, 40
9 USPQ2d 1685, 1690 (Fed. Cir. 1996). We are not requiring the Appellants
10 to prove the negative, but rather the Appellants must meet a minimum
11 burden of proving their case of commercial success, commensurateness, and
12 nexus with persuasive evidence of record sufficient to render the claims
13 unobvious. This the Appellants have not done.
14 The Appellants have not established with credible and persuasive
15 evidence what product was marketed and when. The Appellants have not
16 established that the product which was sold is commensurate in scope with
17 the scope of the claims for which protection is sought. Finally, the
18 Appellants have not persuaded us that the sales are a result of anything other
19 than network marketing, the increasing popularity of mangosteen, and
20 improved availability of the mangosteen fruit in general.
21 Accordingly, we find that the evidence of commercial success is
22 insufficient to persuade us of the unobviousness of the claimed subject
23 matter, which differs from the prior art only in the addition of a known,
24 tasty, mangosteen juice.
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