In re Glatt Air Techniques, Inc. (January 5, 2011) (link below), the Fed. Cir. in dicta reminded the PTO that evidence of commercial success – unlike a showing of unexpected results –need not be commensurate in scope with the claims it is alleged to support. The panel said that such evidence must be considered if what was sold was within the scope of the claims. Of course, this does not change the fact that such evidence – which is almost always disregarded by the Office – must be shown to be related to the merits of the invention, e.g., to the recited combination of elements, as opposed to non-meritorious factors like effective marketing efforts and the like.
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Warren D. Woessner