Appeal 2007-2783
Reexamination 90/005,509
Patent 5,533,499
indicated by the Court of Appeals for the Federal Circuit in Richdel, Inc. v.
Sunspool Corporation, 714 F.2d 1573, 1580, 219 USPQ 8, 12 (Fed. Cir.
1983), the alleged commercial success must be shown as due to something
disclosed in the application and claimed but not present in the prior art.
The two declarations submitted by the patentee are far from
establishing any kind of nexus between the alleged commercial success and
the merits of the invention claimed by the patentee in the claims now on
appeal from a rejection for obviousness.
The declarations do not describe the product sold in any specifics.
We do not know the structure and configuration of what was sold. Although
there is a statement in the declaration dated February 13, 1995, to the effect
that the products sold as mentioned in the declarations are all within the
scope of one or more pending claims which have been rejected and from
which “this appeal” has been taken, that appeal is not the current appeal, that
rejection is not the current rejection, and those pending claims are not the
claims at issue here. Those claims were pending on February 13,1995, and
later amended, which amendments resulted in issuance of the application as
a patent on July 9, 1996, and then the issued claims are still further amended
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