How does the USPTO view experimental failures in determining patent operability?
The USPTO takes a nuanced view of experimental failures when determining patent operability. According to MPEP 716.07:
‘It is to be presumed also that skilled workers would as a matter of course, if they do not immediately obtain desired results, make certain experiments and adaptations, within the skill of the competent worker. The failures of experimenters who have no interest in succeeding should not be accorded great weight.’
This means that occasional failures or the need for some experimentation doesn’t necessarily indicate that a patent is inoperable. The USPTO expects that skilled artisans would make reasonable efforts to get the invention to work, and failures by those not invested in the success of the invention are not given significant consideration.
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