In my last blog pot, I suggested you can use commercial success of your invention as evidence to help overcome rejection of patent claims by the US Patent and Trademark Office (USPTO). Here is a little more on that process.
Many patent claims are rejected for failing the “nonobvious” requirement for patentability of an invention. These “obviousness” rejections tend to be highly subjective, and reflect a USPTO Examiner’s belief that an invention, while novel (i.e. not anticipated by the prior art) represents a trivial improvement over what is already known, and therefore, does not warrant patent protection.
If an invention is successful in the marketplace, that success can indicate that the invention represents a non-trivial improvement over the prior art, and therefore deserves patent protection. Other factors you can use to overcome obviousness rejections, and which are closely related to commercial viability, include unexpected effectiveness of the invention, recognition that the invention solves a long felt need, and licensing of the invention. Interestingly, a pending patent application can be essential to getting a licensing agreement, which underscores an interrelationship between patentability and successful promotion of your invention in the marketplace. Patentability can enhance commercial success, and commercial success can help patentability.
Striving for commercial success for your invention early in the patent process makes sense for another reason. Remember, a patent gives you the right to exclude others from practicing your invention. A commercially successful invention is one that others desire to practice, so the commercial value is likely to be magnified when you have exclusive rights to your invention. Conversely, if you can not get traction for your invention in the marketplace, it may mean you have overestimated the need for your invention. In this case,, why continue to pursue a patent?
So we are back to the point of my previous post. Once you have a patent application pending before the USPTO, promote your invention. Your commercial success, should you achieve it, can help you get patent protection, in addition to supporting your rationale for pursuing a patent in the first place.
