Appeal 2007-2783
Reexamination 90/005,509
Patent 5,533,499
the scope of one or more claims. We do not simply take the declarant’s
word as true, as the question is a legal one.
It is also not known whether the alleged commercial success is due to
features which the patentee’s claimed invention have in common with the
prior art, since no sales data have been provided on Iriarte’s device and no
testimony has been submitted tending to establish that the patentee’s sales
were primarily due to inclusion of features not present in Iriarte’s device.
Finally, it is noted that the patentee’s claims on appeal are many and
are varied in scope. Some require the truss to be made of plastic
construction; some require a particular offset of the resilient member from a
side edge of the truss; and some require the truss to have a narrower
intermediate segment relative to the ends; and some even do not require any
of these features. According to the patentee, each of these features has an
associated benefit or advantage. The declarations do not reveal the structure
of the products sold, and thus it cannot be said that the evidence of
commercial success is commensurate in scope with any claim. Rather, in
light of counsel’s admission during argument that all of the nasal dilator
units sold include a double resilient band construction like the preferred
embodiment disclosed in the specification, we find that (1) there is no
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