Which of the following is NOT considered a Secondary Consideration?

In the context of patent law, secondary considerations refer to evidence that can support the non-obviousness of a patent claim, often discussed during the analysis of inventions that may not be immediately apparent as novel or non-obvious. These secondary considerations can provide context and justification for why an invention may be more valuable or inventive than what is reflected in the prior art.

Commercial success is an important secondary consideration, as it can highlight the demand and acceptance of the invention in the market. Similarly, expert testimony contributes valuable insights, reinforcing the innovative aspects of the invention from a knowledgeable standpoint. The failure of others to create a similar invention can indicate the non-obviousness of the claimed invention.

In contrast, prior art references are not considered secondary considerations. Rather, they are fundamental elements used to evaluate the patentability of an invention, specifically concerning novelty and obviousness. Prior art establishes the existing state of knowledge before the patent application, while secondary considerations provide insights that may demonstrate the significance and impact of the invention beyond what is disclosed in the prior art. Thus, recognizing prior art references as a standard evaluation measure rather than a supportive secondary consideration clarifies why this choice stands out.