Appeal 2007-1917
Application 10/222,660
With regard to the rejection under 35 U.S.C. § 103(a) of claims 5, 6, 8, and
9, we recognize that evidence of secondary considerations, such as that presented
by the Appellant must be considered in route to a determination of
obviousness/nonobviousness under 35 U.S.C. § 103. Accordingly, we consider
anew the issue of obviousness under 35 U.S.C. § 103, carefully evaluating and
weighing both the evidence relied upon by the Examiner and all of the evidence of
Appellant, including the objective evidence of nonobviousness provided by the
Appellant.
The Appellant attempts to show commercial success of the invention
through evidence of an increase in sales of the Snapquick Interchangeable Signage
product and an increase in its customer base since the introduction of the product
in January 2002 (Appeal Br. 19, Decl. ¶¶ 2-10). The Examiner found that the
evidence of commercial success was not commensurate in scope with the claims,
the evidence is not clear enough to exclude the possibility of commercial success
due to other factors, and the Appellant supplied only gross sales figures and did not
show commercial success absent evidence as to market share (Answer 9-10).
The product sold by the Appellant, the Snapquick Interchangeable Signage
product, uses a snap-type fastener (Finding of Fact 14). However, the claims at
issue, i.e., claims 5, 6, 8, and 9, are not limited to snap fasteners. Rather, these
claims are directed broadly to quick-release fasteners or to fasteners generally.
The Appellant’s objective evidence of non-obviousness demonstrates only that any
commercial success of the Snapquick Interchangeable Signage is due to the snap-
type fastener and its durability and ease of use (Finding of Fact 15). See In re
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