How does commercial success factor into patent examinations?

Commercial success is one of the secondary considerations that can be used to support non-obviousness in patent examinations. However, its applicability is limited to certain types of rejections. According to MPEP 2131.04:

“Evidence of secondary considerations, such as unexpected results or commercial success, is irrelevant to 35 U.S.C. 102 rejections and thus cannot overcome a rejection so based.”

This means that:

• Commercial success cannot be used to overcome anticipation rejections under 35 U.S.C. 102.
• However, it can be a valuable argument against obviousness rejections under 35 U.S.C. 103.

When using commercial success as an argument, it’s important to demonstrate a nexus between the claimed invention and the commercial success. This means showing that the success is directly attributable to the unique features of the invention, rather than other factors like marketing or brand recognition.

To learn more:

• commercial success
• secondary considerations
• patent examination
• non-obviousness