Samuel Raby

Patent Trials and Appeals Board

Dec 8, 2020

2020002269 (P.T.A.B. Dec. 8, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/979,202 05/14/2018 Samuel F. Raby RBY-001U-2 5743 52966 7590 12/08/2020 Schramm-Personal-ACT Michael R. Schramm 350 West 2000 South Perry, UT 84302 EXAMINER KING, ANITA M ART UNIT PAPER NUMBER 3632 NOTIFICATION DATE DELIVERY MODE 12/08/2020 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): mike@schrammpatent.com mikeschramm@besstek.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte SAMUEL F. RABY ___________________ Appeal 2020-002269 Application 15/979,202 Technology Center 3600 ____________________ Before LINDA E. HORNER, PHILLIP J. KAUFFMAN, and WILLIAM V. SAINDON, Administrative Patent Judges. KAUFFMAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3, and 5-21.2 Final Act. 6-18. We have jurisdiction under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Michael R. Schramm, the Patent Agent prosecuting this case, as the real party in interest. 2 The Examiner objected to, but did not reject, claim 4, and indicated claim 4 would be allowable if rewritten in independent form. Final Act. 7. Although page one of the Office Action that is the subject of this Appeal lists claim 2 as rejected, the body of the Action does not address claim 2, and therefore the rejection of claim 2 is not before us. Appeal 2020-002269 Application 15/979,202 2 We AFFIRM. CLAIMED SUBJECT MATTER The application at hand is a continuation of U.S. Application 11/963,828 (the “parent application”), now U.S. Patent 9,972,221 B2, issued May 15, 2018. The Board entered two prior decisions regarding the parent application. Specifically, Appeal 2010-005960 was entered on December 17, 2012 (“first prior decision,” 2012 WL 6587543), and Appeal 2015- 000421 was entered on October 30, 2017 (“second prior decision,” 2017 WL 5037090). Appellant’s claimed invention relates to taxidermy mounting apparatuses that provide for movement or repositioning of the mounted game, fish, or like mounted object. Spec. ¶ 1. Claims 1, 9, 15, and 21 are independent. We reproduce claim 1 below.3 1. A repositionable taxidermy mount apparatus comprising: a base defining a substantially flat plate having at least one collar connected to said plate; a support arm having a first end and a second end, said first end being connected to at least one first shaft having a rod extending therefrom, and said second end being connected to a second shaft having a rod extending therefrom; a swivel device defining a substantially flat plate having a collar connected to said plate, and; a taxidermy mount object; wherein said rod of said at least one first shaft is rotatably positioned in said at least one base collar, and wherein said swivel device collar is rotatably positioned on said rod of said second shaft, and 3 For readability, we add line breaks not present in the claim as filed. Appeal 2020-002269 Application 15/979,202 3 wherein said taxidermy mount object is mounted to said swivel device such that said support arm is rotatable about said support arm first end and said swivel device is rotatable about said support arm second end, such that said taxidermy mount object is repositionable via complex movement to result in at least one repositioning comprising said taxidermy mount object being repositioned from a near to said base position to a far from said base position, said taxidermy mount object being repositioned from a far from said base position to a near to said base position, said taxidermy mount object being repositioned from a looking towards a viewer at a predetermined viewing location position to a looking away from said viewer at said predetermined viewing location position, said taxidermy mount object being repositioned from a looking away from a viewer at a predetermined viewing location position to a looking towards said viewer at said predetermined viewing location position, and a combination thereof, and wherein said apparatus includes at least one fixation device adapted such that said apparatus is selectively temporarily fixable in a plurality of predetermined positions. REJECTIONS and EVIDENCE I. Claims 1, 8, 9, 13-15, and 18-21 are rejected under 35 U.S.C. § 103 as unpatentable over Goettl (US 6,828,035 B1, issued Dec. 7, 2004) and Walrath (US 6,209,835 B1, issued Apr. 3, 2001). Final Act. 2-5. II. Claims 3 and 10 are rejected under 35 U.S.C. § 103 as unpatentable over Goettl, Walrath, and Oddsen (US 7,048,242 B2, issued May 23, 2006). Final Act. 5-6. III. Claims 5, 11, and 16 are rejected under 35 U.S.C. § 103 as unpatentable over Goettl, Walrath, and Smed (US 6,695,270 B1, issued Feb. 24, 2004). Final Act. 6. Appeal 2020-002269 Application 15/979,202 4 IV. Claims 6, 7, 12, and 17 are rejected under 35 U.S.C. § 103 as unpatentable over Goettl, Walrath, and Jensen (US 4,561,339, issued Dec. 31, 1985). Final Act. 6-7. Appellant relies on the following two Declarations by Samuel F. Raby (the claimed inventor) with Appendices.4 Referred to as Signed Appendices “First Raby Decl.” Feb. 2, 2009 A. Animals in Motion Website B. Animals in Motion Website C. Move-It Bracket D. Trade Show Photos E. Advertising for Animals in Motion F. Photos of claimed apparatus “Second Raby Decl.” Dec. 31, 2018 A. Animals in Motion website excerpt B. First Raby Decl. C. Claim comparison to Buck Shoulder Mount Hanging System5 D. License information E. Screengrabs and hyperlink of Full Range Systems (FRS) 4 The Appeal Brief refers to the First and Second Raby Declarations and their associated appendices collectively as Appendix A of the Appeal Brief. See, e.g., Appeal Br. 5. None of the Appeal Brief, the Reply Brief, or the two Declarations includes a list of the appendices to each Declaration. We name the appendices based on content. 5 Page 2 of the Second Raby Declaration describes Appendix C as a comparison of the claims at issue and the allegedly copied product. The appendix is actually labeled “RBY-001U-2_181231_Rule_132_Declaration- Raby_-_Appx-A_Claims_vs_FHS.doc.” Presumably, “FHS” includes a typographical error and refers to Full Range Systems. Appeal 2020-002269 Application 15/979,202 5 ANALYSIS Overview For each of the rejections before us, Appellant argues that objective indicia demonstrate the nonobviousness of the claimed subject matter. Appeal Br. 4-8.6 More specifically, Appellant alleges commercial success, copying, and licensing. Appeal Br. 4-5. Significantly, Appellant does not: (1) challenge the Examiner’s findings regarding the scope and content of the prior art, (2) identify a difference between the prior art and the claimed subject matter, or (3) present arguments regarding the level of skill in the art. See Ans. 8 (observing that Appellant did not contest these aspects of obviousness). Therefore, Appellant forfeited arguments regarding the first three Graham factors. See 37 C.F.R. § 41.37(c)(1)(iv); Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966)). The issue presented by this appeal is whether the evidence in favor of obviousness outweighs the evidence against obviousness. In the analysis that follows, we deal with preliminary matters, summarize the rejections, analyze Appellant’s objective indicia, and make a determination whether Appellant has demonstrated error in the Examiner’s obviousness analysis. Preliminary Matters Objection The Office Action that is the subject of this appeal includes an objection to the Specification for failing to provide antecedent basis for the 6 Appellant repeats the same argument for second, third, and fourth rejections, respectively. See Appeal Br. 8-11, 11-15, 15-19. Appeal 2020-002269 Application 15/979,202 6 claimed subject matter. See Final Act. 2 (citing 37 CFR § 1.75(d)(1) and USPTO Manual of Patent Examining Procedure (MPEP) § 608.01(o) (9th ed. Rev. 10.2019, June 2020)); see also Appeal Br. 4; Reply Br. 2. Ordinarily, an objection is petitionable to the Director, and a rejection is appealable to the Board. Appellant does not assert, nor do we discern, that the objection is determinative of, or otherwise related to, a rejection. We take no action with regard to the objection because, in these circumstances, the proper avenue for review is by petition to the Director. See MPEP § 706.01. New Argument in Reply Brief Appellant did not present any arguments in the Appeal Brief regarding the rationale for combining the references. See Appeal Br. 4-8 (arguing that the nonobviousness of the claims is demonstrated by objective indicia of nonobviouness); see also Ans. 8 (observing Appellant only argued secondary considerations). Then, in the Reply Brief, with regard to claims 15 and 20, Appellant argues that a person of ordinary skill in the art would not be motivated to modify Goettl as proposed by the Examiner. See Reply Br. 3. Appellant does not present any arguments in the Reply Brief attempting to demonstrate good cause for why this argument was not raised earlier. Consequently, we do not consider this argument. See 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner's answer, . . . will not be considered by the Board for purposes of the present appeal, unless good cause is shown.”). We note that the Second Prior Decision included two new arguments in the Reply Brief that we likewise did not consider. Second Prior Decision, 2017 WL 5037090, *4-5. Appeal 2020-002269 Application 15/979,202 7 Presumption of Nexus7 Appellant contends they are entitled to a presumption of nexus under NuVasive v. Iancu, 752 Fed. Appx. 985 (Fed. Cir. 2018).8 See, e.g., Appeal Br. 6; Reply Br. 4. Based on that asserted presumption, Appellant contends that the Examiner has the burden to disprove the existing nexus. Appeal Br. 6; Reply Br. 4. For the reasons that follow, NuVasive does not stand for the proposition that Appellant is entitled to a presumption of nexus under the facts of the present case. In NuVasive, a nonprecedential case, the Court of Appeals for the Federal Circuit determined that the Board misconstrued a claim term in an inter partes reexamination. NuVasive, 752 Fed. Appx. at 995. The Federal Circuit also determined that the Board’s explanation was unpersuasive regarding why the Patent Owner had not produced sufficient evidence to demonstrate nexus between a certain surgical technique and the claims at issue. Id. at 995-996. The Federal Circuit remanded the case for the Board to consider the evidence of nonobviousness in light of the proper claim construction and the Court’s finding that the surgical technique had a nexus to the claims at issue. Id. at 996. The Federal Circuit did not apply a presumption of nexus. 7 Nexus regarding commercial success refers to the connection between Appellant’s commercial product and the claims at issue, while nexus with regard to copying deals with the connection between the allegedly copied product and the claims at issue. 8 Throughout the briefs, Appellant cites cases by party names without citation to a reporter and without pinpoint citation. See, e.g., Appeal Br. 6 citing “NuVasive v. Iancu (Fed. Cir. Nov 8, 2018.” For clarity, we provide citation to a reporter, and when applicable, pinpoint citation. See generally 37 C.F.R. § 41.12. Appeal 2020-002269 Application 15/979,202 8 The case at hand is distinguishable from NuVasive in that the case at hand does not include even an assertion by Appellant that the Examiner misconstrued a claim. For that reason, there is no suggestion that the Examiner’s nexus analysis was skewed by an incorrect claim construction. Beyond this distinction, and more importantly, Appellant’s assertion is incorrect because NuVasive did not apply a presumption of nexus. Rather, NuVasive stated that “[w]hen the patentee has presented undisputed evidence that its product is the invention disclosed in the challenged claims it is error for the Board to find the contrary without further explanation.” NuVasive, 752 Fed.Appx. at 996 (quoting PPC Broadband, Inc. v. Corning Optical Communications RF, 815 F.3d 734, 747 (Fed. Cir. 2016)). This statement makes sense in the context of the inter partes reexamination decision at issue in NuVasive, in which the party challenging the patent in inter partes reexamination can present evidence to dispute the patentee’s evidence of nexus. The case at hand, however, is an appeal in ex parte prosecution. The important distinction between the procedures is that in an ex parte appeal, an Examiner, unlike an opposing party, has no available means for adducing evidence. See In re Huang, 100 F.3d 135, 139-40 (Fed. Cir. 1996); see also Ex Parte Jellá, 90 USPQ2d 1009, 1017 (BPAI 2008) (precedential). Appellant, not the Examiner, bears the burden of establishing nexus to commercial success. See id.9 9 Even in the inter partes review forum of an AIA trial, a patentee seeking to amend claims is entitled to a presumption of nexus only after showing that the objective evidence is tied to a specific product and that product embodies the claimed features and is coextensive with them. See Lectrosonics, Inc., v. Zaxcom, Inc., IPR2018-01129 (PTAB 2020) (precedential) (citing Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366, 1373 (Fed. Cir. 2019)). Appeal 2020-002269 Application 15/979,202 9 Cases Appellant contends that the Court of Appeals for the Federal Circuit has reversed several appeals from the Board for failure to give proper weight to objective indicia of nonobviousness.10 Appeal Br. 5-6. Appellant does not meaningfully analogize to the facts of the cases. Rather, Appellant relies on the cases for the general proposition that failing to give proper weight to objective indicia of nonobviousness can lead to a remand from the Federal Circuit. We agree with Appellant’s general proposition that proper weight must be given to secondary considerations in obviousness analysis. See generally Ex parte Thompson (informative) (evidence of secondary considerations pertaining to obviousness must be considered); see also Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538 (Fed. Cir. 1983) (objective evidence of nonobviouness must be considered when present); In re Cyclobenzaprine Hydrocholoride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1075 (Fed. Cir. 2012) (It is error to make an obviousness determination without consideration of all four Graham factors); Transocean v. Maersk, 617 F.3d 1296, 1305 (Fed. Cir. 2010) (when present, objective evidence of nonobviousness must be considered). 10 Citing: Transocean v. Maersk, 617 F.3d 1296 (Fed. Cir. 2010); Mintz v. Dietz & Watson, Inc., 679 F.3d 1372 (Fed. Cir. 2012); Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litigation (Fed. Cir 2012); Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343 (Fed. Cir. 2013); Leo Pharmaceutical Products, Ltd. v. Rea, 726 F.3d. 1346 (Fed. Cir. 2013); Apple, Inc. v. US Int’l Trade Com’n, 725 F.3d 1356 (Fed. Cir. 2013); Cheese Systems, Inc. v. Tetra Pak Cheese and Power Sys, Inc., 725 F.3d 1341 (Fed. Cir. 2013). Appeal 2020-002269 Application 15/979,202 10 Patents Appellant identifies two other unrelated patent applications that issued as patents after the Examiner withdrew an obviousness rejection in response to the applicant’s submittal of objective evidence of nonobviousness. Appeal Br. 6-7. The Examiner contends that prosecution in those other applications has no bearing on the application at hand. Ans. 10. Appellant responds that the prosecution of these other applications stands for the proposition that objective indicia of nonobviousness can in fact rebut an obviousness rejection. Reply Br. 5. Similar to our analysis of the previous contention, we agree with Appellant’s general assertion that objective indicia of nonobviousness can warrant withdrawing an obviousness rejection. The two unrelated applications cited by Appellant are not relevant to this case and we need not address them further. Analysis Rejections In the first rejection, the Examiner found that Goettl discloses a repositionable taxidermy mount apparatus as claimed except that Goettl’s support arm is fixedly attached to the base rather than rotatably attached by a rod and collar. Final Act. 2-3. The Examiner found that Walrath discloses a repositionable mount apparatus that includes a support arm that is rotatably attached to a base by a rod and collar. Id. at 4-5. The Examiner concluded that it would have been obvious to modify Goettl to rotatably attach the support arm to the base, as taught by Walrath, to provide an alternative Appeal 2020-002269 Application 15/979,202 11 mechanically equivalent means for supporting and displaying an object that provides more degrees of adjustability. Id. at 5. In the second rejection, the Examiner builds on the first rejection, modifying the combination of Goettl and Walrath to include the base having a plurality of collars and the support arm having a plurality of first shafts, as taught by Oddsen. Final Act. 5. The Examiner concluded that it would have been obvious to make such a modification to increase adjustability by permitting the object to be positioned along a vertical axis of the base. Id. at 5-6. In the third rejection, the Examiner builds on the combination of the first rejection to include a plurality of collars and support arms as disclosed by Smed. Final Act. 6. The Examiner concluded that it would have been obvious to make such a modification to permit supporting more than one object on the base of the repositioning apparatus. Id. In the fourth rejection, the Examiner finds that the combination of Goettl and Walrath disclose the invention as claimed except a second swivel device plate substantially nonparallel to a second swivel device collar. Final Act. 6-7. The Examiner concludes that it would have been obvious to modify the combination of Goettl and Walrath to include a second swivel plate substantially nonparallel to a second swivel device collar, as disclosed by Jensen, to provide alternative mounting on a horizontal surface as opposed to a vertical surface. Id. at 7. As explained above, Appellant only argues that objective indicia demonstrate the nonobviousness of the claims. As a result, none of the Examiner’s findings or rationales in support of the obviousness rejection have been effectively challenged by Appellant. Before making an Appeal 2020-002269 Application 15/979,202 12 obviousness determination, however, we consider Appellant’s objective indicia. Commercial success The Examiner determined that Appellant had not shown that the evidence of commercial success was commensurate in scope with the claims at issue. Final Act. 8; Ans. 8. The Examiner did not stop analysis there; rather, the Examiner went on to consider the proferred evidence. Specifically, the Examiner determined that gross sales figures do not show commercial success absent evidence of market share, and disagreed with Appellant’s assertion that their product was the only complex motion repositionable taxidermy mount apparatus in the relevant market. Final Act. 8-9; Ans. 8-9. In light of this, the Examiner determined that Appellant’s evidence was worthy of little or no weight because it did not put the gross sales figures in perspective. Ans. 8. Appellant contends that the repositionable taxidermy apparatus (the commercial product alleged to encompass the claims at issue) had commercial success as shown in the First and Second Raby Declarations. Appeal Br. 4-5. Appellant contends that the Examiner is mistaken regarding the lack of nexus because “[t]he product practiced by appellant is the very embodiment of the disclosure (i.e. is commensurate with the claims) and practices all of the limitations of the rejected claims.” Appeal Br. 6. We first deal with nexus and then assess the evidence of commercial success. The Second Raby Declaration simply states that evidence of commercial success is found in the First Raby Declaration. Second Raby Decl. 1-2. The First Raby Declaration addresses the nexus between the commercial product and different claims, namely those that led to what is Appeal 2020-002269 Application 15/979,202 13 now U.S. Patent 9,972,221 B2. Further, we found in both the First and Second Prior Decisions that Appellant failed to show nexus between those claims on appeal and the evidence of commercial success. See First Prior Decision, 2012 WL 6587543, *3; Second Prior Decision, 2017 WL 5037090, *5. As to the instant claims on appeal, the First Raby Declaration does not address the nexus between the commercial product and the claims of the application at hand. The Appeal Brief and Reply Brief also contend that the allegedly copied product is commensurate with the claims at issue. See Appeal Br. 6; Reply Br. 4. The nexus between the allegedly copied product and the claims at issue sheds no light on the nexus between Appellant’s commercial product and the claims at issue. In other words, Appellant provides argument and evidence regarding nexus for the copying assertion but not for the commercial success assertion. We further address the copying evidence and argument below. Although Appellant has not shown nexus between the claims at issue and the purported evidence of commercial success, for sake of argument, we consider the evidence of commercial success. We previously considered and rejected Appellant’s evidence of commercial success in both the First and Second Prior Decisions. That analysis is equally applicable here, and for consistency, we incorporate and adopt it. See, e.g., First Prior Decision, 2012 WL 6587543, *4 (determining that Appellant defined the relevant market too narrowly so that there was insufficient context to understand the significance the gross sales figures); Second Prior Decision, 2017 WL 5037090, *5-*6 (making a similar determination). For those reasons, we Appeal 2020-002269 Application 15/979,202 14 agree with the Examiner’s explanation of why Appellant’s argument and evidence is not persuasive. See Final Act. 8-9; Ans. 8-9. Appellant argues that the Examiner’s determination that the relevant market is larger than just Appellant’s commercial product is incorrect. Reply Br. 4 (citing Ans. 8-9). Appellant made this argument twice previously, and each time we explained why the market should not be defined so narrowly. See First Prior Decision 2012 WL 658543, *4; Second Prior Decision, 2017 WL 5037090, *5-*6. For example, we pointed out that the “Move-It” device appears to be a competing product. Yet Appellant provides no persuasive argument or evidence in response to our prior holdings. In sum, Appellant failed to demonstrate a nexus between the commercial product and the claims at issue, and even if there was a nexus, the proferred evidence does little to demonstrate commercial success. Copying The Examiner determined that Appellant’s evidence of copying did not clearly show the claimed feature of a swivel plate having a collar engaging a steel rod positioned on the swing arm device for permitting complex movement. Final Act. 9-10; Ans. 10 (repeating this determination). Appellant argues that the Second Raby Declaration (appendix A) demonstrates copying by the Boss Buck Shoulder Mount Hanging System. Appeal Br. 5. Appellant contends that a licensing agreement with Cabela’s, who was selling the Boss Buck product, evidences copying. Id. Appellant contends that the Boss Buck product is commensurate in scope with the claims. Appeal Br. 6-7 (citing the Second Raby Decl., Appx. A, D, and E); Appeal 2020-002269 Application 15/979,202 15 Reply Br. 4 (arguing a presumption of nexus applies per NuVasive), 5 (arguing that Appellant offered to provide a physical instance of the allegedly copied product). We agree with Appellant that the explanation in Appendix C of the Second Raby Declaration (pages 1-2), coupled with the pictures in Appendix D (pages D1, D2, D9, D11), and Appendix E (pages E11-E14), show that the allegedly copied device includes the elements that the Examiner contends are not clearly shown. See Reply Br. 5. Specifically, the allegedly copied device includes a base, support arm, swivel device, and taxidermy mount object configured so that the taxidermy object is repositionable via complex movement. We note that Appellant’s explanation breaks down the claim elements and includes cross reference numbers facilitating comparison to the allegedly copied device. Second Raby Decl., Appx. C, D. Appellant identified this information, and in response, the Examiner merely repeated in the Answer the assertion that certain elements were not shown, without addressing Appellant’s more detailed explanation. See Ans. 10 (repeating the determination in the Final Act. 9-10). Consequently, we agree with Appellant that they have shown the allegedly copied device meets the limitations of the claims. This does not end our inquiry. For copying to be effective in showing non-obviousness, there must be more than simply a competing version of the product. Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004) (“Not every competing product that arguably falls within the scope of a patent is evidence of copying. Otherwise every infringement suit would automatically confirm the nonobviousness of the patent.”). For example, evidence of Appeal 2020-002269 Application 15/979,202 16 copying can be particularly persuasive when a competitor had tried and failed to introduce a competing product until the patented product became available. Vandenberg v. Dairy Equipment Co., a Div. of DEC Int’l, Inc., 740 F.2d 1560, 1567 (Fed. Cir. 1984); see also Cable Elec. Prods., Inc. v. Denmark, Inc., 770 F.2d 1015, 1028 (Fed. Cir. 1985) (“[M]ore than the mere fact of copying by an accused infringer is needed to make that action significant to a determination of the obviousness issue.”). Appellant has not provided any evidence that Boss Buck tried and failed to introduce a competing product. This omission should be seen in the context that we made this very point with regard to one of Appellant’s earlier copying assertions. See Second Prior Decision, 2017 WL 5037090, *6. Furthermore, Appellant has not offered any other reason for us to be persuaded that the allegedly copied device was actually copied. In sum, while it appears the allegedly copied product falls within the scope of the claims at issue, Appellant has not demonstrated that the claimed device was copied. Licensing Appellant contends that in addition to commercial success and copying, Cabela’s sold the allegedly copied product as shown by a settlement agreement that is effectively a licensing agreement.11 Appeal Br. 4-5 (citing the Second Raby Declaration). In the cited Declaration, Mr. Raby testifies that the agreement is “an agreement to cease selling” the allegedly copied product. Second Raby 11 The license is part of a settlement agreement with Cabela’s. See Second Raby Decl., 3; Appx. D16-D19. Appeal 2020-002269 Application 15/979,202 17 Decl. 3. The settlement agreement is highly redacted, preventing more detailed analysis of the agreement. See e.g. Second Raby Decl, Appx. D16- D19, paras. 2-5 (each essentially blank). The settlement agreement references Applicant’s offer of a non-exclusive license “for [Cabela’s] sales of Boss Buck Full Range Hanging System.” There is no indication whether money was exchanged for the prior sales. There is no indication as to whether the license includes royalties on further sales. If either of those existed, the agreement does not provide the dollar amount of the settlement, the number of units sold, or other more detailed information. The recitals, which often state the motivations for each party entering the agreement, have been redacted. The redactions are so extensive that little, if anything, of value to this case can be extracted from this document. We cannot determine if Cabela’s entered the agreement out of respect for the patent, to avoid the expense of litigation, or for any other reason. See In re Affinity Labs of Texas, LLC, 856 F.3d 833, 901-902 (Fed. Cir. 2017). Further, the lack of information prevents putting the agreement in any meaningful context in terms of commercial succcess. Consequently, we afford this evidence little or no weight. To the extent that Appellant is asserting that the agreement demonstrates that the allegedly copied product falls within the scope of the claims at issue, we agree that it is evidence of such. However, as explained above, Appellant has already demonstrated that, but has not demonstrated copying. For these reasons, the settlement agreement provides little or no evidence in support of nonobviousness. Appeal 2020-002269 Application 15/979,202 18 Determination Considering the evidence presented by Appellant against obviousness and weighing all the evidence anew, we agree with the Examiner that the evidence for obviousness outweighs the evidence against obviousness. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1, 8, 9, 13- 15, 18-21 103 Goettl, Walrath 1, 8, 9, 13- 15, 18-21 3, 10 103 Goettl, Walrath, Oddsen 3, 10 5, 11, 16 103 Goettl, Walrath, Smed 5, 11, 16 6, 7, 12, 17 103 Goettl, Walrath, and Jensen 6, 7, 12, 17 Overall Outcome 1, 3, 5-21 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED