Can references from non-analogous art ever be used in obviousness rejections?
While it is generally preferred to rely on analogous art for obviousness rejections, there are circumstances where references from non-analogous art can be used. The MPEP 2141.01(a) provides guidance on this:
“The examiner must determine what is ‘analogous prior art’ for the purpose of analyzing the obviousness of the subject matter at issue. […] However, in a simple mechanical invention a broad spectrum of prior art must be explored and it is reasonable to permit inquiry into other areas where one of ordinary skill in the art would be aware that similar problems exist.”
This means that:
- For simple mechanical inventions, a broader range of prior art may be considered.
- If the reference is from a remote field, the examiner must have a reason for considering it.
- The reference must be reasonably pertinent to the particular problem with which the inventor is involved.
The key is that the examiner must provide a clear rationale for why a person of ordinary skill in the art would have looked to the non-analogous reference to solve the problem at hand. This rationale should be supported by evidence and logical reasoning.
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