How does an examiner determine if a reference is analogous art?

According to MPEP 2141.01(a), an examiner must determine whether a reference is analogous art when analyzing the obviousness of the subject matter under examination. The MPEP provides guidance on this process:

1. Same Field of Endeavor Test: The examiner should consider “explanations of the invention’s subject matter in the patent application, including the embodiments, function, and structure of the claimed invention.” (Airbus S.A.S. v. Firepass Corp., 941 F.3d 1374, 1380, 2019 USPQ2d 430083)
2. Reasonably Pertinent Test: The examiner should consider the problem faced by the inventor, as reflected in the specification. A reference is “reasonably pertinent” if it “logically [] have commended itself to an inventor’s attention in considering his problem.” (In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379-80)

The MPEP emphasizes: “The examiner must determine whether a reference is analogous art when analyzing the obviousness of the subject matter under examination. If a reference is not analogous art to the claimed invention, it may not be used in an obviousness rejection under 35 U.S.C. 103.”

To learn more:

• analogous art
• patent examination
• prior art
• obviousness
• 35 U.S.C. 103