Can a comparison with a commercial product be used to show unexpected results in a patent application?

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.

While it’s possible to use a comparison with a commercial product to show unexpected results, it’s generally not considered sufficient on its own. The MPEP 716.02(e) provides guidance on this:

‘Comparison of the claimed invention with the disclosure of each cited reference to determine the number of claim limitations in common with each reference, bearing in mind the relative importance of particular limitations, will usually yield the closest single prior art reference.’

This suggests that the USPTO prefers comparisons with specific prior art references rather than commercial products. However, if a commercial product embodies the closest prior art and is well-documented, it might be used in conjunction with other evidence. It’s crucial to ensure that the comparison is made with the closest prior art, whether it’s a commercial product or a specific reference.