How does the USPTO consider objective evidence of nonobviousness?
The USPTO is required to consider objective evidence of nonobviousness when timely presented. According to MPEP 716.01(a):
“Affidavits or declarations, when timely presented, containing evidence of criticality or unexpected results, commercial success, long-felt but unsolved needs, failure of others, skepticism of experts, etc., must be considered by the examiner in determining the issue of obviousness of claims for patentability under 35 U.S.C. 103.”
This evidence is often referred to as ‘secondary considerations’ and can be crucial in overcoming obviousness rejections. The examiner must weigh this evidence along with the prima facie case of obviousness to make a final determination of patentability.
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