What evidence is required to demonstrate ‘failure of others’ in patent applications?
To demonstrate ‘failure of others’ in a patent application, applicants must provide evidence that others have attempted to solve the problem but were unsuccessful. The MPEP 716.04 states:
‘The failure to solve a long-felt need may be due to factors such as lack of interest or lack of appreciation of an invention’s potential or marketability.’
Evidence of failure of others may include:
- Documentation of unsuccessful attempts by competitors
- Expert testimony regarding previous failed attempts
- Published literature discussing the problem and failed solutions
- Evidence of commercial failures related to the problem
It’s important to note that the evidence should be specific to the problem solved by the claimed invention and should demonstrate that the failures were due to technical limitations, not market factors.
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