How is “undue experimentation” considered in determining enabling disclosure?
“Undue experimentation” is a key factor in determining whether a prior art reference provides an enabling disclosure. The MPEP Section 2121.01 states:
“The disclosure in an assertedly anticipating reference must provide an enabling disclosure of the desired subject matter; mere naming or description of the subject matter is insufficient, if it cannot be produced without undue experimentation.”
This means that if a person of ordinary skill in the art would need to perform excessive or unreasonable amounts of experimentation to reproduce the claimed invention based on the prior art disclosure, the reference may not be considered enabling. The determination of what constitutes “undue experimentation” is made on a case-by-case basis, considering factors such as the breadth of the claims, the nature of the invention, the state of the prior art, and the level of skill in the art.
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