How does the MPEP define ‘commercial success’ in patent examination?
The Manual of Patent Examining Procedure (MPEP) does not provide a specific definition for ‘commercial success.’ However, it outlines the requirements for using commercial success as evidence of non-obviousness. According to MPEP 716.03(a):
An applicant who is asserting commercial success to support its contention of nonobviousness bears the burden of proof of establishing a nexus between the claimed invention and evidence of commercial success.
The MPEP emphasizes that commercial success must be directly related to the claimed invention and not to extraneous factors such as business acumen or advertising. The success should be commensurate in scope with the claims and demonstrate that the commercial success flows from the functions and advantages disclosed or inherent in the specification description.
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