How does the USPTO handle prior art rejections when operability is questioned?

The USPTO handles prior art rejections where operability is questioned as follows:

• The examiner must provide a reasonable basis to question the operability of the prior art.
• If operability is questioned, the burden shifts to the applicant to provide rebuttal evidence.
• The prior art is presumed to be operable unless proven otherwise.

As stated in MPEP 2121.01: “Even if a reference discloses an inoperative device, it is prior art for all that it teaches.” This means that even if a device in prior art doesn’t work as described, it can still be used as a reference for other teachings it contains.

To learn more:

• prior art
• operability
• USPTO
• patent examination