How can an applicant demonstrate unexpected results in a 37 CFR 1.132 affidavit?

Demonstrating unexpected results in a 37 CFR 1.132 affidavit can be a powerful way to support patentability. MPEP 716.02 provides guidance on how to effectively present such evidence:

‘Any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected.’

To demonstrate unexpected results effectively:

• Comparative data: Provide data comparing the claimed invention to the closest prior art
• Statistical significance: Ensure that the results are statistically significant and not just due to chance
• Commensurate scope: The unexpected results should be commensurate in scope with the claimed invention
• Explanation: Clearly explain why the results are unexpected in light of the prior art
• Relevance: Show that the unexpected results are relevant to the claimed invention

It’s important to note that the burden is on the applicant to establish that the results are truly unexpected and significant. The examiner will evaluate the evidence in the context of the entire application and the prior art.

To learn more:

• unexpected results
• affidavits
• declarations
• 37 CFR 1.132
• patent evidence

To learn more:

• 37 CFR 1.132