“Commensurate in Scope with the Claims”: Misphrased?
More Than Your Mark
JULY 3, 2018
If you’ve been prosecuting patents for any significant length of time, you’ve probably been hit with the objection that your data, while surprising and unexpected, are not “commensurate in scope with your claims.” Maybe you have some understanding of what this phrase means. Maybe you have some idea what the patent examiner thinks it means. MPEP § 716.02(d) provides: “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘obj
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