Appeal 2007-2783
Reexamination 90/005,509
Patent 5,533,499
b. Secondary Considerations
The Examiner has made out a strong prima facie case of obviousness.
The patentee submitted two declarations as objective evidence of
nonobviousness, which must be weighed collectively with the entirety of the
evidence to arrive at a conclusion on the obviousness issue.
The two declarations pertain to only one objective indicator of
nonobviousness, commercial success, and are both executed by Daniel E.
Cohen, the Chief Executive Officer of CNS, Inc., a licensee of the patentee’s
involved patent. In his first declaration, dated February 17, 1994, Mr. Cohen
represents:
that in the period from October 12, 1993 through February 11,
1994, CNS, Inc. received commercial orders for more than one
million units of the product,
that neither he nor CNS, Inc. have published prior to February
11, 1994, any public advertisements concerning the product
developed and subsequently sold by CNS, Inc., or paid or
otherwise caused others to publish such advertisements prior to
that date, and
that neither he nor CNS, Inc. have any knowledge of any
similar unitary or single body dilator operable through
adherence under outward stress to the outer skin of the user that
is being offered for sale to the public by others as of the date of
this document.
In his second declaration, dated February 13, 1995, Mr. Cohen represents:
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