How does an affidavit or declaration of commercial success relate to patent claims?
An affidavit or declaration of commercial success must establish a clear nexus between the claimed invention and the commercial success. Simply attributing success to a product or process “constructed according to the disclosure and claims” is not sufficient to establish this nexus.
The MPEP 716.03(a) states: “An affidavit or declaration attributing commercial success to a product or process ‘constructed according to the disclosure and claims of [the] patent application’ or other equivalent language does not establish a nexus between the claimed invention and the commercial success because there is no evidence that the product or process which has been sold corresponds to the claimed invention, or that whatever commercial success may have occurred is attributable to the product or process defined by the claims.” This guidance is based on Ex parte Standish, 10 USPQ2d 1454, 1458 (Bd. Pat. App. & Inter. 1988).
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