What is the significance of gross sales figures in proving commercial success?
What is the significance of gross sales figures in proving commercial success?
Gross sales figures can be an important indicator of commercial success in patent cases, but they are not conclusive on their own. The MPEP 716.03(b)(IV) states:
Gross sales figures do not show commercial success absent evidence as to market share, Cable Electric Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 226 USPQ 881 (Fed. Cir. 1985), or as to the time period during which the product was sold, or as to what sales would normally be expected in the market, Ex parte Standish, 10 USPQ2d 1454 (Bd. Pat. App. & Inter. 1988).
This means that while high gross sales can suggest commercial success, they must be contextualized with additional information such as:
- Market share achieved by the product
- The time period over which the sales occurred
- Comparison to expected sales in the market
- The size of the market and competition
Applicants should provide this contextual information to strengthen their commercial success arguments based on gross sales figures.
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