What is the significance of ‘failure of others’ in patent examinations?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
What is the significance of ‘failure of others’ in patent examinations?
The ‘failure of others’ is a crucial factor in patent examinations, particularly when assessing non-obviousness. It provides strong evidence that the invention was not obvious to those skilled in the art. The MPEP states:
The failure of others to provide a feasible solution to the long-standing problem is evidence of nonobviousness.
Demonstrating that others have tried and failed to solve the problem can:
- Highlight the inventive nature of the solution
- Show that the invention was not obvious to experts in the field
- Strengthen the argument for patentability
When combined with evidence of long-felt need, the failure of others can be particularly persuasive in overcoming obviousness rejections during patent examination.