Thinking Economically aboutNexus in Commercial Success

• Date: 01 June 2023
• Author: DeForest McDuff , Sophia Luo, and Mickey Ferri

June 27, 2023FEATURE

Thinking Economically about

Nexus in Commercial Success

DeForest McDu, Sophia Luo, and Mickey Ferri

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©2023. Published in Landslide, Vol. 15, No. 4, June/July 2023, by the American

Bar Association. Reproduced with permission. All rights reserved. This

information or any portion thereof may not be copied or disseminated in any

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without the express written consent of the American Bar Association or the

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Commercial success is a secondary consideration of the obviousness of a

patented invention. The Federal Circuit has stated that commercial success is

relevant because “the law presumes an idea would successfully have been

brought to market sooner, in response to market forces, had the idea been

obvious to persons skilled in the Central to commercial success as a

secondary consideration is evaluating a nexus between the alleged success

and the claimed invention.

While case law regarding nexus originated with relatively simple products (e.g.,

plow shanks, paving stones, and bicycles), more recent applications of nexus

involve complex products with many patents and patent applications (e.g.,

pharmaceutical drug ). Accordingly, recent Federal Circuit

cases have placed further emphasis on nexus, asking, for example: To what

degree does the patented invention drive sales for the product as opposed to

other patents and non-patented

Despite the increased scrutiny of nexus analysis, experts frequently engage in

simplistic approaches to evaluating nexus for products that involve multiple

art.” 1

products 2

factors? 3