What should be done if the comparison with prior art is not identical?
When the comparison between the claimed invention and the prior art reference is not identical, any deviations should be explained. According to MPEP 716.02(e):
“Where the comparison is not identical with the reference disclosure, deviations therefrom should be explained, and if not explained should be noted and evaluated, and if significant, explanation should be required.”
This means that applicants should proactively explain any differences in their comparisons. If they don’t, the examiner should note these deviations and may require further explanation if the differences are significant. This ensures a thorough and fair evaluation of the claimed invention’s non-obviousness.
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