What types of comparative tests are acceptable for showing non-obviousness?
MPEP 716.02(b) provides guidance on acceptable comparative tests for demonstrating non-obviousness:
“Evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims.”
This means that both direct and indirect comparative tests can be used to show non-obviousness. Direct comparisons involve testing the claimed invention against the closest prior art. Indirect comparisons may involve testing related compounds or properties that can be reasonably linked to the claimed invention. The key is that the comparison must be relevant to the scope of the claims and provide meaningful insights into the unexpected nature of the invention.
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