What factors can potentially negate evidence of commercial success in patent applications?
Several factors can potentially negate or weaken evidence of commercial success in patent applications. The MPEP mentions:
- Heavy promotion or advertising
- Shift in advertising
- Consumption by purchasers normally tied to applicant or assignee
- Other business events extraneous to the merits of the claimed invention
As stated in the MPEP:
In considering evidence of commercial success, care should be taken to determine that the commercial success alleged is directly derived from the invention claimed, in a marketplace where the consumer is free to choose on the basis of objective principles, and that such success is not the result of heavy promotion or advertising, shift in advertising, consumption by purchasers normally tied to applicant or assignee, or other business events extraneous to the merits of the claimed invention, etc.
Applicants must demonstrate that the commercial success is directly attributable to the merits of the claimed invention, rather than these external factors.
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