How does the USPTO consider secondary considerations in patent examinations?
The United States Patent and Trademark Office (USPTO) is required to consider secondary considerations, also known as objective evidence of nonobviousness, when examining patent applications. MPEP 716.01(a) emphasizes this requirement, citing the Court of Appeals for the Federal Circuit in Stratoflex, Inc. v. Aeroquip Corp.:
“Evidence rising out of the so-called ‘secondary considerations’ must always when present be considered en route to a determination of obviousness.”
This means that patent examiners must take into account any presented evidence of:
- Commercial success
- Long-felt but unsolved needs
- Failure of others
- Skepticism of experts
- Unexpected results
These factors can provide crucial context about the invention and may indicate that it is not obvious, even if it might appear so at first glance. The USPTO considers this evidence as part of the overall assessment of patentability under 35 U.S.C. 103.
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