Appeal 2007-1917
Application 10/222,660
Tiffin, 448 F.2d 291, 171 USPQ 294 (CCPA 1971) (holding that the applicant’s
objective evidence of non-obviousness is not commensurate with the scope of
certain claims, reciting “containers” generally, because it establishes non-
obviousness only with respect to “cups” and processes of making them).
Further, the Appellant's evidence of gross sales as an indication of
commercial success is weak, at best. The Appellant’s proof of unit sales, as the
Examiner points out, does not indicate whether the numbers sold were a substantial
quantity in the relevant market (Finding of Fact 16). In re Huang, 100 F.3d 135,
140, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996) (without evidence that the sales are a
substantial quantity in the relevant market, “bare sales numbers” are a “weak
showing” of commercial success, if any); In re Baxter Travenol Labs., 952 F.2d
388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991) (“[I]nformation solely on
numbers of units sold is insufficient to establish commercial success.”); Kansas
Jack, Inc. v. Kuhn, 719 F.2d 1144, 1150-51, 219 USPQ 857, 861 (Fed. Cir. 1983)
(“The evidence of commercial success consisted solely of the number of units sold.
There was no evidence of market share, of growth in market share, of replacing
earlier units sold by others or of dollar amounts, and no evidence of a nexus
between sales and the merits of the invention. Under such circumstances,
consideration of the totality of the evidence, including that relating to commercial
success, does not require a holding that the invention would have been nonobvious
at the time it was made to one skilled in the art.”); Sjolund v. Musland, 847 F.2d
1573, 1582, 6 USPQ2d 2020, 2028 (Fed. Cir. 1988) (“Nor could the jury, from the
bare evidence of units sold and gross receipts, draw the inference that the
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