What is the burden of proof in rebutting a prima facie case of obviousness?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-30 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. According to MPEP 2145, if a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. As stated in the MPEP: “ If a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. “ This means the applicant must present persuasive arguments or evidence to overcome the examiner’s rejection. However, the ultimate burden of persuasion remains with the examiner to prove obviousness. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Establishing Prima Facie Case of Obviousness MPEP 2145 Applicant Must Provide Arguments to Rebut Obviousness MPEP 2145 Consideration of Rebuttal Evidence for Obviousness MPEP 2145 Consideration of Rebuttal Evidence for Prima Facie Case MPEP 2145 Consideration of Rebuttal Evidence for Obviousness MPEP 2145 Prohibited Consideration of Applicant’s Rebuttal Evidence Under AIA and Pre-AIA MPEP 2145 Rebuttal Evidence Must Be Factually Supported MPEP 2145 Prohibited Rebuttal Evidence Involves Copying by Others MPEP 2145 Permitted Rebuttal Evidence Must Be Considered Despite Prima Facie Case of Obviousness MPEP 2145 Required Secondary Considerations for Rebutting Prima Facie Case of Obviousness MPEP 2145 Permitted Other Related FAQs 5 FAQs Collapse How does the USPTO handle arguments about improper hindsight in obviousness rejections? What types of evidence can be used to rebut an obviousness rejection? What is the &#8216;teaching away&#8217; doctrine in patent law? How does the USPTO evaluate rebuttal evidence for obviousness rejections? How does an ...