If there is a rejection based on 35 usc 103, evidence of commercial success can overcome that rejection in very limited circumstances. Evidence of commercial success plays no role in determining novelty. Evidence of commercial success is one measure of a claimed feature`s long felt and unmet need. Having argued this point, I can tell you it often falls on deaf ears, since evidence of commercial success can also be a function of things like advertising, and not the state of knowledge in the art.
patentandtrademark6/5/2008 3:19 PM
James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."