Appeal 2007-1917
Application 10/222,660
popularity of the [sold units] was due to the merits of the invention.”) (citing Cable
Elec. Prods. v. Genmark, Inc., 770 F.2d 1015, 1026-27, 226 USPQ 881, 888 (Fed.
Cir. 1985) and Kansas Jack, Inc., 719 F.2d at 1150-51, 219 USPQ at 861). The
Declarant has chosen not to furnish us with any idea of the size of the market.
Also, there is no evidence that the sales of Appellant’s product have come at the
expense of other prior art display systems (Finding of Fact 17). Indeed, in absence
of further economic evidence, it is improper to infer that the reported sales
represent a substantial share of any definable market or even that the sales volume
is anything out of the ordinary in the industry in question. See e.g., Cable Elec.
Prods., 770 F.2d at 1028, 226 USPQ at 889.
Accordingly, on the totality of the evidence, weighing all evidence of
obviousness against all evidence of non-obviousness, we hold that claims 5, 6, 8,
and 9 are unpatentable over Boeniger and Sekiguchi.
CONCLUSIONS OF LAW
We conclude that the Appellant failed to show that the Examiner erred in
rejecting claims 1, 2, 5, 11-14, and 17-19 under 35 U.S.C. § 102(b) as anticipated
by Boeniger. The Appellant showed, however, that the Examiner erred in rejecting
claims 15 and 20 under 35 U.S.C. § 102(b) as anticipated by Boeniger.
We further conclude that the Appellant failed to show that the Examiner
erred in rejecting claims 5, 6, 8, and 9 under 35 U.S.C. § 103(a) as unpatentable
over Boeniger and Sekiguchi. The Appellant showed, however, that the Examiner
erred in rejecting under 35 U.S.C. § 103(a) claim 16 as unpatentable over Boeniger
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