Question 18
Domain 1: Patentability Requirements and Patent FundamentalsUnder 35 U.S.C. § 103, which of the following is a secondary consideration of nonobviousness?
Correct answer: B
Explanation
Under 35 U.S.C. § 103, nonobviousness may be shown by “secondary considerations” such as commercial success, long-felt but unsolved needs, and failure of others. Commercial success of the claimed invention is one of those objective indicia because it can help show the invention was not obvious to a person having ordinary skill in the art.
Why each option is right or wrong
A. The number of prior art references cited
B. Commercial success of the claimed invention
35 U.S.C. § 103 permits obviousness to be assessed in light of objective indicia, and the Supreme Court in Graham v. John Deere, 383 U.S. 1 (1966), identified commercial success as a recognized secondary consideration. In patent examination, evidence that the claimed invention achieved market success can be probative of nonobviousness when it is tied to the merits of the claimed features rather than extraneous factors.
C. The length of the patent specification
D. The number of claims in the application