What are secondary considerations in patent law?
Secondary considerations, also known as objective indicia of non-obviousness, are factors considered in patent law when evaluating the non-obviousness of an invention. These factors can include unexpected results, commercial success, long-felt but unsolved needs, and failure of others. However, it’s important to note that secondary considerations are not applicable to all types of patent rejections.
According to MPEP 2131.04:
“Evidence of secondary considerations, such as unexpected results or commercial success, is irrelevant to 35 U.S.C. 102 rejections and thus cannot overcome a rejection so based.”
This means that while secondary considerations can be important for overcoming obviousness rejections under 35 U.S.C. 103, they are not relevant to anticipation rejections under 35 U.S.C. 102.
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