How does the failure of others relate to long-felt need in patent applications?

The failure of others to solve a problem is closely related to long-felt need in patent applications. According to MPEP 716.04, this relationship depends on several factors:

1. Persistence of the problem: The need must have been persistent and recognized by those skilled in the art. The MPEP cites In re Gershon, which states: Since the alleged problem in this case was first recognized by appellants, and others apparently have not yet become aware of its existence, it goes without saying that there could not possibly be any evidence of either a long felt need in the . . . art for a solution to a problem of dubious existence or failure of others skilled in the art who unsuccessfully attempted to solve a problem of which they were not aware.
2. Prior unsuccessful attempts: There should be evidence of unsuccessful attempts by others to solve the problem. The case of Orthopedic Equipment Co., Inc. v. All Orthopedic Appliances, Inc. is mentioned, emphasizing the importance of documenting prior failed attempts.
3. Relevance to non-obviousness: The failure of others can support an argument for non-obviousness of the claimed invention, especially when combined with evidence of long-felt need.

When presenting evidence of long-felt need and failure of others, applicants should ensure that the problem was widely recognized, that others attempted to solve it, and that these attempts were unsuccessful until the claimed invention.

To learn more:

• Long-felt need
• Failure of others
• Patent applications
• Non-obviousness
• Persistent problem