What is the difference between factual evidence and opinion evidence in patent examination?
What is the difference between factual evidence and opinion evidence in patent examination?
In patent examination, the distinction between factual evidence and opinion evidence is crucial. The MPEP 716.01(c) provides guidance on this matter:
The arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965).
Factual evidence includes objective, verifiable data such as experimental results, test data, or documented observations. This type of evidence is generally given more weight in patent examination because it can be independently verified and evaluated.
Opinion evidence, on the other hand, consists of subjective statements or beliefs, often provided by experts in the field. While opinion evidence can be valuable, it is typically given less weight than factual evidence. The USPTO considers factors such as the expert’s qualifications, the basis for their opinion, and any potential bias when evaluating opinion evidence.
In patent examination, examiners prefer factual evidence to support patentability arguments, but they must consider both types of evidence in their evaluation of the application.
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