How does commercial success factor into patent non-obviousness?
Commercial success can be a significant factor in demonstrating the non-obviousness of a claimed invention. However, it’s crucial to establish a nexus between the commercial success and the specific features of the claimed invention. The MPEP 716.01(b) states:
“In considering evidence of commercial success, care should be taken to determine that the commercial success alleged is directly derived from the invention claimed, in a marketplace where the consumer is free to choose on the basis of objective principles, and that such success is not the result of heavy promotion or advertising, shift in advertising, consumption by purchasers normally tied to applicant or assignee, or other business events extraneous to the merits of the claimed invention, etc.”
This means that an applicant must show that the commercial success is due to the unique features of the invention, not external factors like marketing or brand loyalty.
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