What factors can undermine evidence of commercial success in patent applications?
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.
Several factors can undermine evidence of commercial success in patent applications. According to MPEP 716.03(b), these factors include:
- Heavy promotion or advertising
- Shift in advertising
- Consumption by purchasers normally tied to the applicant or assignee
- Other business events extraneous to the merits of the claimed invention
- Recent changes in related technology or consumer demand
- The contemporary drive toward greater use of certain techniques
- Licensing programs that succeed for reasons unrelated to the unobviousness of the product or process
The MPEP cites several cases illustrating these points, such as:
“Pentec, Inc. v. Graphic Controls Corp., 776 F.2d 309, 227 USPQ 766 (Fed. Cir. 1985) (commercial success may have been attributable to extensive advertising and position as a market leader before the introduction of the patented product)”
It’s crucial for applicants to address these potential factors when presenting evidence of commercial success to support nonobviousness.