What is the impact of a ‘blocking patent’ on evidence of commercial success?
A ‘blocking patent’ can affect the evaluation of evidence of commercial success or long-felt need in patent examination. The MPEP states:
“Objective evidence of commercial success or long felt need and failure of others may be given less weight if the record shows that the applicant or patent owner has a strong market power or blocking patent depending on the facts of record.” (MPEP 716.01(c))
A blocking patent can deter others from investing in making, developing, or marketing a later invention due to the risk of infringement. This deterrent effect is relevant when evaluating why others haven’t developed the invention and, consequently, in assessing the obviousness of the later patent.
The case of Acorda Therapeutics, Inc. v. Roxane Lab., Inc., 903 F.3d 1310, 128 USPQ2d 1001 (Fed. Cir. 2018) provides guidance on this issue, emphasizing that the impact of a blocking patent is a fact-specific inquiry.
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