What is the significance of ‘failure of others’ in patent examinations?

What is the significance of ‘failure of others’ in patent examinations?

The ‘failure of others’ is a crucial factor in patent examinations, particularly when assessing non-obviousness. It provides strong evidence that the invention was not obvious to those skilled in the art. The MPEP states:

The failure of others to provide a feasible solution to the long-standing problem is evidence of nonobviousness.

(MPEP 716.04)

Demonstrating that others have tried and failed to solve the problem can:

  • Highlight the inventive nature of the solution
  • Show that the invention was not obvious to experts in the field
  • Strengthen the argument for patentability

When combined with evidence of long-felt need, the failure of others can be particularly persuasive in overcoming obviousness rejections during patent examination.

To learn more:

Tags: Failure Of Others, non-obviousness, patent examination, secondary considerations