How should commercial success be demonstrated for inventions with claimed ranges?
For inventions with claimed ranges, it’s not necessary to demonstrate commercial success at every point within the range. Evidence of substantial commercial success at a typical point within the claimed range can be persuasive, especially if operation throughout the range is similar.
The MPEP 716.03(a) cites a precedent: “Where, as here, the claims are directed to a combination of ranges and procedures not shown by the prior art, and where substantial commercial success is achieved at an apparently typical point within those ranges, and the affidavits definitely indicate that operation throughout the claimed ranges approximates that at the particular points involved in the commercial operation, we think the evidence as to commercial success is persuasive.” This guidance comes from In re Hollingsworth, 253 F.2d 238, 240, 117 USPQ 182, 184 (CCPA 1958).
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