Intellectual Property

Commercial Success

A firm that is (or expects to be) accused of infringing a patent typically claims the patent is invalid. One legal test for showing invalidity is to demonstrate that the patent claims are "obvious." One legal test for determining obviousness is to consider whether the patented products embodying the patented technology have been commercially successful. The logic is as follows: if the patent was obvious, then someone would already have introduced products to the market with those (or substantially similar) features, thereby causing the patented products to not be successful. Conversely, if one finds that the product is successful, and that that success flows directly from the patented features, then the invention may be presumed to not have been obvious and, therefore, to be valid. In that connection, NERA experts are often asked to evaluate the commercial success of patented products (most often, pharmaceutical products).