What constitutes evidence of copying in patent cases?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-10 10 Rules 5 Related FAQs This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice. Evidence of copying in patent cases can take various forms. According to MPEP 716.06 , the Federal Circuit in Wyers v. Master Lock Co. stated that copying “requires evidence of efforts to replicate a specific product.” This can be demonstrated through: Internal company documents Direct evidence such as disassembling a patented prototype Photographing its features and using the photograph as a blueprint to build a replica Access to the patented product combined with substantial similarity to the patented product Additionally, evidence of access to a competitor’s non-public information and use of that information to develop a product can be persuasive evidence of copying, as seen in Liqwd, Inc. v. L’Oreal USA, Inc. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Evidence of Efforts to Replicate Product Required MPEP 716.06 Permitted Evidence of Access to Competitor’s Non-Public Info May Show Copying MPEP 716.06 Permitted Evidence of Access and Use Suggests Copying MPEP 716.06 Evidence of Copying Persuades Nonobviousness MPEP 716.06 Evidence of Competitor’s Access and Use Implies Copying MPEP 716.06 Declaration Can Replace Affidavit in Patent Applications MPEP 716 Competitor Copying as Secondary Evidence MPEP 716.06 Permitted Copying Persuasive of Nonobviousness When Failed to Invent MPEP 716.06 Oath or Declaration Required for Traversing Rejections MPEP 716 Required Primary Examiner Must Review Evidence to Overcome Rejection MPEP 716 Other Related FAQs 5 FAQs Collapse What is the significance of copying in patent law? How does access to confidential information affect copying claims in patent disputes? How does copying affect the nonobviousness analysis in patent ...