Appeal 2007-2783
Reexamination 90/005,509
Patent 5,533,499
that CNS, Inc. received orders during December, 1994
substantially exceeding one million units for its product,
that CNS, Inc. received orders during January, 1995
substantially in excess of six million units of the product, and
that the product sold as mentioned in his previous declaration as
well as the current declaration comes within the scope of one
or more of the pending claims in the above-identified
application which have been rejected during the
prosecution thereof, such rejection being the action from
which this appeal has been taken. [Emphasis added.]
The “appeal” mentioned in Mr. Cohen’s declaration dated February
13, 1995, is not the current appeal, as that declaration was executed on
February 13, 1995, a date even prior to original issuance of the patent
undergoing reexamination in this case, which reexamination proceeding
resulted in the current appeal.
It is well established that when it comes to objective evidence of
nonobviousness, “[a] nexus is required between the merits of the claimed
invention and the evidence offered, if that evidence is to be given substantial
weight enroute to conclusion on the obviousness issue.” Stratoflex, Inc. v.
Aeroquip Corp., 713 F.2d at 1539, 218 USPQ at 879. See also In re Fielder,
471 F.2d 640, 642, 176 USPQ 300, 302 (1973). Commercial success is
relevant only if it flows from the merits of the invention claimed. Sjolund v.
Musland, 847 F.2d at 1582, 6 USPQ2d at 2028. More specifically, as was
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