What constitutes evidence of copying in patent cases?

Evidence of copying in patent cases can take various forms. According to MPEP 716.06, the Federal Circuit in Wyers v. Master Lock Co. stated that copying “requires evidence of efforts to replicate a specific product.” This can be demonstrated through: Internal company documents Direct evidence such as disassembling a patented prototype Photographing its features and…

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How does access to confidential information affect copying claims in patent disputes?

Access to confidential information can significantly strengthen copying claims in patent disputes. MPEP 716.06 cites the case of Liqwd, Inc. v. L’Oreal USA, Inc. to illustrate this point: “Evidence that shows access to a competitor’s non-public information and use of that information to develop a product may be persuasive evidence of copying. Liqwd, Inc. v.…

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What are common reasons for an affidavit or declaration under 37 CFR 1.132 to be considered insufficient?

The MPEP outlines several reasons why an affidavit or declaration under 37 CFR 1.132 might be considered insufficient to overcome a rejection: Lack of relevance: It includes statements which amount to an affirmation that the affiant has never seen the claimed subject matter before. This is not relevant to the issue of nonobviousness of the…

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What are some common pitfalls in presenting evidence of unexpected results?

Common pitfalls in presenting evidence of unexpected results include not providing sufficient data to cover the entire claimed range and failing to show criticality. The MPEP 716.02(d) cites several cases that illustrate these issues: In re Grasselli, 713 F.2d 731, 741, 218 USPQ 769, 777 (Fed. Cir. 1983) (Claims were directed to certain catalysts containing…

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How does the scope of commercial success evidence relate to patent claims?

The scope of commercial success evidence must be commensurate with the scope of the patent claims. The MPEP states: Objective evidence of nonobviousness including commercial success must be commensurate in scope with the claims. (MPEP 716.03(a)) This means that the commercial success must be due to the features claimed in the patent application, not unclaimed…

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What is the relationship between commercial success and patent nonobviousness?

Commercial success can be used as evidence of nonobviousness in patent applications. However, the Manual of Patent Examining Procedure (MPEP) 716.03(b) states that “care should be taken to determine that the commercial success alleged is directly derived from the invention claimed.” This means that there must be a clear nexus between the claimed invention and…

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What is the nexus requirement for commercial success in patent applications?

The nexus requirement for commercial success in patent applications refers to the need for a factually and legally sufficient connection between the evidence of commercial success and the claimed invention. As stated in the MPEP, The term ‘nexus’ designates a factually and legally sufficient connection between the evidence of commercial success and the claimed invention…

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