What is the significance of commercial success in 37 CFR 1.132 affidavits?

Commercial success can be a valuable form of evidence in 37 CFR 1.132 affidavits to support patentability. MPEP 716.03 discusses the significance of commercial success:

‘An applicant who is asserting commercial success to support its contention of nonobviousness bears the burden of proof of establishing a nexus between the claimed invention and evidence of commercial success.’

Key aspects of demonstrating commercial success include:

• Nexus: Establish a clear connection between the commercial success and the claimed invention
• Market share: Provide data on the product’s market share or sales figures
• Time period: Show success over a significant period of time
• Comparison: Compare the success to competing products in the market
• Licensing: Evidence of licensing can indicate commercial success

Commercial success can be particularly persuasive when it addresses a long-felt need or solves a persistent problem in the industry. However, it’s important to note that commercial success alone may not be sufficient to overcome a strong prima facie case of obviousness. The examiner will consider commercial success along with other evidence and arguments presented in the application.

To learn more:

• commercial success
• affidavits
• declarations
• 37 CFR 1.132
• patent evidence

To learn more:

• 37 CFR 1.132