What role does licensing play in demonstrating commercial success for patents?
What role does licensing play in demonstrating commercial success for patents?
Licensing can play a significant role in demonstrating commercial success for patents. According to MPEP 716.03(b), “Licensing activities may be relevant to commercial success if there is a proven nexus between the licensing activities and the merits of the claimed invention.”
The MPEP provides several key points regarding licensing as evidence of commercial success:
- The number and nature of the licenses can be indicative of the invention’s value.
- Licenses should be acquired out of a desire to benefit from the invention’s advantages, not to avoid litigation.
- The licensor should provide sales or revenue data from licensees to support the commercial success claim.
The MPEP further states: “Where the offered licensing evidence establishes a prima facie case of nexus, the burden shifts to the examiner to present evidence that the licensing was due to other factors, e.g., a desire to avoid litigation.” This highlights the importance of establishing a clear connection between the licensing and the merits of the invention itself.
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