Can post-filing evidence be used to support sufficiency of disclosure in a patent application?
Can post-filing evidence be used to support sufficiency of disclosure in a patent application?
The use of post-filing evidence to support sufficiency of disclosure in a patent application is generally not accepted by the USPTO. According to MPEP 716.09, “Evidence to supplement a specification which on its face appears insufficient to enable one skilled in the art to make and use the claimed invention presents a question whether the evidence may be considered in determining enablement under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph.”
The MPEP further clarifies that post-filing date evidence offered to show enablement is not usually considered. The sufficiency of disclosure must be evaluated based on the information contained in the application as filed. However, there are limited circumstances where post-filing evidence might be considered:
- To show that a disclosed device actually works as described
- To show that a disclosed process actually produces the claimed product
- To provide technical support for statements made in the specification
It’s important to note that relying on post-filing evidence is risky, and applicants should strive to include all necessary information in the original application to demonstrate sufficiency of disclosure.
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