How is the reasonable expectation of success determined in patent examination?
The reasonable expectation of success in patent examination is determined based on the knowledge available at the relevant time. For pre-AIA cases, this is at the time the invention was made. For AIA cases, it’s before the effective filing date of the claimed invention.
According to MPEP 2143.02:
“Whether an art is predictable or whether the proposed modification or combination of the prior art has a reasonable expectation of success is determined at the time the invention was made for pre-AIA obviousness analysis. For obviousness analysis under the AIA, the relevant time is ‘before the effective filing date of the claimed invention.'”
Examiners consider factors such as the teachings of the prior art, the level of skill in the art, and any evidence of success or failure in similar endeavors. They assess whether, given the state of knowledge at the relevant time, a person of ordinary skill in the art would have had a reasonable expectation that the proposed combination or modification would be successful.
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