What is the difference between 35 U.S.C. 102 and 35 U.S.C. 103 in relation to secondary considerations?

The key difference between 35 U.S.C. 102 and 35 U.S.C. 103 in relation to secondary considerations lies in their applicability:

• 35 U.S.C. 102 (Novelty): Secondary considerations are not relevant and cannot overcome rejections based on this section.
• 35 U.S.C. 103 (Non-obviousness): Secondary considerations can be used to support non-obviousness arguments.

MPEP 2131.04 states:

“Evidence of secondary considerations, such as unexpected results or commercial success, is irrelevant to 35 U.S.C. 102 rejections and thus cannot overcome a rejection so based.”

This means that while secondary considerations like commercial success or unexpected results can be powerful arguments against obviousness rejections under 35 U.S.C. 103, they have no bearing on novelty determinations under 35 U.S.C. 102.

To learn more:

• 35 U.S.C. 102
• 35 U.S.C. 103
• secondary considerations
• novelty
• non-obviousness