How does copying affect the nonobviousness analysis in patent law?

Copying can be persuasive evidence of nonobviousness in patent law. MPEP 716.06 cites several cases where evidence of copying was found to be persuasive:

• When an alleged infringer tried for a substantial length of time to design a similar product or process but failed and then copied the claimed invention (Dow Chem. Co. v. American Cyanamid Co.)
• When an admitted infringer failed to produce a satisfactory solution after 10 years of effort and expense (Panduit Corp. v. Dennison Manufacturing Co.)

However, the MPEP also notes that “more than the mere fact of copying is necessary to make that action significant because copying may be attributable to other factors such as a lack of concern for patent property or contempt for the patentee’s ability to enforce the patent” (Cable Electric Products, Inc. v. Genmark, Inc.).

To learn more:

• Copying
• Nonobviousness
• Patent Analysis
• Secondary Considerations