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Can the commercial success of an infringing device/process also be considered when analyzing obviousness under 35 U.S.C. 103?

3/12/2017

 
Yes, as long as there is a nexus between the success of the product and the invention claimed. Brown & Williamson Tobacco Corp. v. Philip Morris Inc., 229 F.3d 1120, 1130 (Fed. Cir. 2000).  Even "success in licensing" can be offered as evidence of commercial success. In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995).

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