What types of evidence can be used to rebut an obviousness rejection?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-30 10 Rules 5 Related FAQs 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. The MPEP outlines several types of evidence that can be used to rebut an obviousness rejection: Evidence of unexpected results Evidence that the claimed invention yields unexpectedly improved properties or properties not present in the prior art Evidence that the claimed invention was copied by others Evidence of the state of the art, the level of skill in the art, and the beliefs of those skilled in the art Evidence of commercial success, long-felt but unsolved needs, and failure of others As stated in MPEP 2145: “ Rebuttal evidence may include evidence of ‘secondary considerations,’ such as ‘commercial success, long felt but unsolved needs, [and] failure of others.’ “ The evidence should be factually supported and should establish a nexus between the evidence and the claimed invention. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Rebuttal Evidence Must Be Factually Supported MPEP 2145 Prohibited Evidence of Commercial Success Allowed MPEP 2145 Evidence of Unexpected Improvements Required MPEP 2145 Permitted Rebuttal Evidence Involves Copying by Others MPEP 2145 Permitted Rebuttal Evidence Includes Secondary Considerations and Unexpected Results MPEP 2145 Evidence of Commercial Success and Copying Sufficient Without Presumed Nexus MPEP 2145 Rebuttal Evidence May Address Any Graham Factor Including Secondary Considerations MPEP 2145 Permitted Evidence of Secondary Considerations Does Not Control Obviousness Conclusion MPEP 2145 Consideration of Rebuttal Evidence for Prima Facie Case MPEP 2145 Consideration of Rebuttal Evidence for Obviousness MPEP 2145 Prohibited Other Related FAQs 5 FAQs Collapse How does the USPTO handle arguments about improper hindsight i...