How can the presumption of operability be challenged in a patent?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-10 10 Rules 5 Related FAQs This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice. The presumption of operability in a patent can be challenged through affidavits or declarations that provide evidence of inoperability. However, MPEP 716.07 sets a high standard for such challenges: ‘Affidavits or declarations attacking the operability of a patent cited as a reference must rebut the presumption of operability by a preponderance of the evidence.’ This means that the evidence presented must show that it is more likely than not that the patented invention is inoperable. The burden of proof lies with the party challenging the patent’s operability. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Affidavits Must Rebut Presumption of Operability MPEP 716.07 Required Oath or Declaration Required for Traversing Rejections MPEP 716 Required Affidavit or Declaration Under 37 CFR 1.132 Must Follow Form Paragraph 7.66 MPEP 716 Required Affidavit or Declaration Under 37 CFR 1.132 Must Follow Form Paragraph 7.66 MPEP 716 Required Primary Examiner Must Review Evidence to Overcome Rejection MPEP 716 Publications May Serve as Evidence for Facts at Issue MPEP 716 Recommended Affidavits Must Be Made Under Oath MPEP 716 Declaration Can Replace Affidavit in Patent Applications MPEP 716 Declaration Must Acknowledge False Statements MPEP 716 Required Declaration Must Acknowledge Truthfulness of Statements MPEP 716 Required Other Related FAQs 5 FAQs Collapse What is the role of affidavits in challenging the operability of a prior art reference? What is the standard for determining if a patent disclosure is enabling? What is the significance of enablement in prior art references? How does the USPTO handle prior art references with both operable and inoperable features? H...