What is the significance of commercial success in 37 CFR 1.132 affidavits?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
Commercial success can be a valuable form of evidence in 37 CFR 1.132 affidavits to support patentability. MPEP 716.03 discusses the significance of commercial success:
‘An applicant who is asserting commercial success to support its contention of nonobviousness bears the burden of proof of establishing a nexus between the claimed invention and evidence of commercial success.’
Key aspects of demonstrating commercial success include:
- Nexus: Establish a clear connection between the commercial success and the claimed invention
- Market share: Provide data on the product’s market share or sales figures
- Time period: Show success over a significant period of time
- Comparison: Compare the success to competing products in the market
- Licensing: Evidence of licensing can indicate commercial success
Commercial success can be particularly persuasive when it addresses a long-felt need or solves a persistent problem in the industry. However, it’s important to note that commercial success alone may not be sufficient to overcome a strong prima facie case of obviousness. The examiner will consider commercial success along with other evidence and arguments presented in the application.