How many examples are needed to demonstrate superiority for nonobviousness in patents?
When it comes to demonstrating superiority to support nonobviousness in patent applications, there is no set number of examples required. According to MPEP 716.02(a):
No set number of examples of superiority is required.
This principle is illustrated by the case of In re Chupp, cited in the MPEP:
- Evidence showing that the claimed herbicidal compound was more effective than the closest prior art compound in controlling specific weeds in corn and soybean crops was sufficient to overcome an obviousness rejection.
- This was true even though the specification indicated the claimed compound was an average performer on crops other than corn and soybean.
Similarly, in Ex parte A, unexpected superior therapeutic activity against anaerobic bacteria was sufficient to rebut prima facie obviousness, even without evidence of effectiveness against all bacteria.
Key points to consider:
- The quality and significance of the examples are more important than the quantity.
- Examples should demonstrate unexpected and significant superiority in relevant properties.
- The superiority should be practically advantageous and not merely a slight improvement.
While more examples can strengthen a case for nonobviousness, even a single well-chosen example can be sufficient if it demonstrates clear and unexpected superiority in a significant property.
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