How does the USPTO avoid hindsight bias in obviousness determinations?

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 USPTO recognizes the challenge of avoiding hindsight bias in obviousness determinations. The MPEP acknowledges:

“The tendency to resort to ‘hindsight’ based upon applicant’s disclosure is often difficult to avoid due to the very nature of the examination process. However, impermissible hindsight must be avoided and the legal conclusion must be reached on the basis of the facts gleaned from the prior art.”

To avoid hindsight bias, examiners are instructed to:

• Consider the state of the art at the time of the invention
• Base conclusions on evidence from the prior art
• Avoid using the applicant’s disclosure as a blueprint for the invention
• Provide explicit reasoning for obviousness conclusions

By following these guidelines, the USPTO aims to ensure fair and objective patentability determinations.