What factors can undermine evidence of commercial success in patent applications?
Several factors can undermine evidence of commercial success in patent applications. According to MPEP 716.03(b), these factors include:
- Heavy promotion or advertising
- Shift in advertising
- Consumption by purchasers normally tied to the applicant or assignee
- Other business events extraneous to the merits of the claimed invention
- Recent changes in related technology or consumer demand
- The contemporary drive toward greater use of certain techniques
- Licensing programs that succeed for reasons unrelated to the unobviousness of the product or process
The MPEP cites several cases illustrating these points, such as:
“Pentec, Inc. v. Graphic Controls Corp., 776 F.2d 309, 227 USPQ 766 (Fed. Cir. 1985) (commercial success may have been attributable to extensive advertising and position as a market leader before the introduction of the patented product)”
It’s crucial for applicants to address these potential factors when presenting evidence of commercial success to support nonobviousness.
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