Can strong evidence of secondary considerations overcome obviousness?
While strong evidence of secondary considerations (indicia of nonobviousness) is important, it may not always be sufficient to overcome a strong case of obviousness. The MPEP 716.01(d) states:
“Although the record may establish evidence of secondary considerations which are indicia of nonobviousness, the record may also establish such a strong case of obviousness that the objective evidence of nonobviousness is not sufficient to outweigh the evidence of obviousness.”
This means that even compelling evidence of secondary considerations, such as unexpected results or commercial success, must be weighed against the strength of the obviousness case. In some instances, the evidence of obviousness may be so strong that it outweighs the secondary considerations.
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