How 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 evidence that the success is derived from the claimed invention, not external factors
- Show that consumers choose the product based on the merits of the invention
- Demonstrate that success is not due to heavy promotion, advertising, or other business factors unrelated to the invention
- Provide sales figures along with market share data or context about the relevant market
It’s important to note that the burden of proof for establishing a nexus is generally lower in ex parte proceedings before the USPTO compared to civil litigation.
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