How does the USPTO evaluate sales figures as evidence of commercial success?
The United States Patent and Trademark Office (USPTO) evaluates sales figures carefully when considering evidence of commercial success. According to MPEP 716.03(b): “Gross sales figures do not show commercial success absent evidence as to market share, Cable Electric Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 226 USPQ 881 (Fed. Cir. 1985), or as to…
Read MoreWhat is the significance of the EmeraChem Holdings, LLC v. Volkswagen Grp. of Am., Inc. case in MPEP 715.01(a)?
The EmeraChem Holdings, LLC v. Volkswagen Grp. of Am., Inc. case is cited in MPEP 715.01(a) to illustrate the importance of providing sufficient context and evidence when submitting inventor declarations. The case highlights that a bare assertion of inventorship, especially when made long after the invention, is not enough to overcome a rejection. The MPEP…
Read MoreHow can an applicant demonstrate a nexus between commercial success and the claimed invention?
To demonstrate a nexus between commercial success and the claimed invention, an applicant must provide evidence that the commercial success is directly attributable to the claimed features of the invention. According to MPEP 716.03(b): “Merely showing that there was commercial success of an article which embodied the invention is not sufficient.” Instead, applicants should: Provide…
Read MoreHow can an applicant demonstrate unexpected results?
To demonstrate unexpected results, an applicant should: Compare the claimed invention with the closest prior art Explain the significance of the unexpected results Provide evidence that is commensurate in scope with the claims The MPEP states: The evidence relied upon should establish ‘that the differences in results are in fact unexpected and unobvious and of…
Read MoreWhat types of evidence can be used to establish conception in a 37 CFR 1.131(a) affidavit?
When filing a 37 CFR 1.131(a) affidavit to establish conception of an invention, it’s crucial to provide sufficient evidence. The MPEP provides guidance on what constitutes acceptable evidence: While conception is the mental part of the inventive act, it must be capable of proof, such as by demonstrative evidence or by a complete disclosure to…
Read MoreWhat is the significance of ‘commensurate in scope’ for unexpected results?
‘Commensurate in scope’ means that the evidence of unexpected results must apply to the full range of the claimed invention. The MPEP states: Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the…
Read MoreWhat are the challenges in establishing commercial success for design patents?
Establishing commercial success for design patents presents unique challenges. The Manual of Patent Examining Procedure (MPEP) 716.03(b) specifically addresses this issue: “Establishing a nexus between commercial success and the claimed invention is especially difficult in design cases. Evidence of commercial success must be clearly attributable to the design to be of probative value, and not…
Read MoreCan attorney arguments replace evidence in patent cases?
No, attorney arguments cannot replace evidence in patent cases. The MPEP clearly states: “The arguments of counsel cannot take the place of evidence in the record.” (MPEP 716.01(c)) This principle is based on the case In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). Attorney statements regarding aspects such as unexpected…
Read MoreCan arguments of patent attorneys replace evidence in patent examination?
Can arguments of patent attorneys replace evidence in patent examination? No, the arguments of patent attorneys cannot replace actual evidence in patent examination. This principle is clearly stated in MPEP 716.01(c) II: The arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716,…
Read MoreWhat is an affidavit or declaration under 37 CFR 1.132?
An affidavit or declaration under 37 CFR 1.132 is a form of evidence submitted to traverse rejections or objections in a patent application or reexamination. The MPEP states: When any claim of an application or a patent under reexamination is rejected or objected to, any evidence submitted to traverse the rejection or objection on a…
Read More