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I am referring to this case https://bannerwitcoff.com/wp-content/uploads/2021/04/Jump-Rope-Maker-Gets-PTAB-To-Nix-Rivals-Handle-Patents-Law360.pdf

The plaintiff cited that:

In the PTAB cases, Jump Rope Systems tried to persuade the board that the inventions were
nonobvious by citing a statistic that 79% of all event winners in national and international jump-rope
competitions between 2013 and 2016 used ropes incorporating the claimed technology.

So what if a high percentage of winners indeed used the claimed technology. That just proves that the claimed technology is useful and an improvement. It would have no impact on whether it is obvious or nonobvious, IMO.

The question is:

Assuming that it is indeed the case that 79% of winners used the claimed technology, why would this prove nonobvious-ness?

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It is called “secondary considerations”.

This is from an important SCOTUS case from the 1960s was called John Deer V Graham. It was about an innovation reading plows.

In the decision was a quote from an earlier case about a pesticide sprayer

“the . . . [device] meets the exacting standard required for a combination of old elements to rise to the level of patentable invention by fulfilling the long-felt need with an economical, efficient, utilitarian apparatus which achieved novel results and immediate commercial success.”

This resulted in the short hand that commercial success, long felt but unsolved needs, and failure of others were indicia of non-obviousness. Widespread copying by others came in later -

"Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1364 (Fed. Cir. 2012) (“a nexus between the copying and the novel aspects of the claimed invention must exist for evidence of copying to be given significant weight in an obviousness analysis”).

The basic idea is that commercial success, based on the claimed invention, indicated the invention was a breakthrough. —- From a comment I learned there is an analogous policy in Europe. https://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_vii_10_3.htm

"Where the invention solves a technical problem which workers in the art have been attempting to solve for a long time, or otherwise fulfils a long-felt need, this may be regarded as an indication of inventive step.”

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  • In case you would like to add it to your answer, the same exists in Europe. Long-felt need or commercial success are secondary indicators of possible inventive step. See these European guidelines ("Where the invention solves a technical problem which workers in the art have been attempting to solve for a long time, or otherwise fulfils a long-felt need, this may be regarded as an indication of inventive step."). In practice, it is difficult to get inventive step acknowledged by long-felt need. Aug 17, 2022 at 6:56
  • Thanks - I have done so.
    – George White
    Aug 17, 2022 at 15:30

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