How does the MPEP address the issue of commercial success in foreign countries for U.S. patent applications?
How does the MPEP address the issue of commercial success in foreign countries for U.S. patent applications?
The Manual of Patent Examining Procedure (MPEP) recognizes that commercial success in foreign countries can be relevant to U.S. patent applications. According to MPEP 716.03(b), “Evidence of commercial success in foreign countries may be probative of commercial success in the United States.”
However, the MPEP also notes that there are limitations to this consideration:
- The evidence must be reasonably commensurate with the scope of the claims.
- The market conditions in the foreign country should be similar to those in the United States.
- If there are significant differences in market conditions, these should be explained and accounted for.
The MPEP further states: “In evaluating whether proffered evidence is commensurate in scope with the claimed invention, the Board has found that ‘there was no showing that the foreign and U.S. markets were the same or similar.'” This emphasizes the importance of demonstrating the relevance of foreign success to the U.S. market when presenting such evidence.
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