What is the ‘critical element test’ for unexpected results in patent applications?

The ‘critical element test’ is an important consideration when evaluating whether unexpected results are commensurate in scope with the claimed invention. MPEP 716.02(d) states:

To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range.

This test involves:

• Identifying the critical element or range in the claims
• Providing data that demonstrates unexpected results within the claimed range
• Showing that the results are significantly different outside the claimed range

If the applicant can demonstrate that the claimed range or element is critical to achieving unexpected results, it can help establish that the results are commensurate in scope with the claims.

To learn more:

• critical element test
• unexpected results
• patent applications
• claimed range