How are secondary considerations evaluated in design patent applications?
Secondary considerations, also known as objective evidence of nonobviousness, play an important role in evaluating design patent applications. The MPEP states:
“Secondary considerations, such as commercial success and copying of the design by others, are relevant to the evaluation of obviousness of a design claim. Evidence of nonobviousness may be present at the time a prima facie case of obviousness is evaluated or it may be presented in rebuttal of a prior obviousness rejection.”
The MPEP cites two relevant cases:
- MRC Innovations, Inc. v. Hunter Mfg., LLP, 747 F.3d 1326, 1335-36, 110 USPQ2d 1235, 1242-43 (Fed. Cir. 2014)
- Crocs Inc. v. International Trade Commission, 598 F.3d 1294, 1310, 93 USPQ2d 1777, 1788-89 (Fed. Cir. 2010)
These cases emphasize the importance of considering secondary factors when evaluating the nonobviousness of a design. Factors such as commercial success, copying by others, and unexpected results can provide objective evidence that a design is not obvious, even if a prima facie case of obviousness has been established based on the prior art.
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