When is copying not persuasive of nonobviousness in patent cases?
According to MPEP 716.06, there are situations where alleged copying is not persuasive of nonobviousness:
- When the copy is not identical to the claimed product
- When the other manufacturer had not expended great effort to develop its own solution (Pentec, Inc. v. Graphic Controls Corp.)
- When the basic concepts were developed prior to learning of the competitor’s device (Vandenberg v. Dairy Equipment Co.)
The MPEP states: “Alleged copying is not persuasive of nonobviousness when the copy is not identical to the claimed product, and the other manufacturer had not expended great effort to develop its own solution.” This highlights the importance of considering the degree of similarity and the effort involved in the alleged copying.
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