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

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.

To learn more:

Topics: MPEP 2100 - Patentability, MPEP 2145 - Consideration Of Applicant'S Rebuttal Arguments And Evidence, Patent Law, Patent Procedure
Tags: commercial success, Rebuttal Evidence, secondary considerations, unexpected results