Which of the following is NOT considered a Secondary Consideration?

Secondary considerations are factors that may support the non-obviousness of an invention during the patent examination process, typically invoked to provide evidence that the invention is not obvious to a person having ordinary skill in the art. These considerations can play an important role in the evaluation of a patent application.

Commercial success is a strong indicator that the invention is impactful and commercially viable, which can suggest that it is not merely an obvious variation of prior art. Expert testimony can also be vital because it provides insights from qualified individuals who can substantiate the inventive step and highlight any non-obvious features of the invention. The failure of others to create a solution can demonstrate that the invention offers a unique approach, reinforcing its non-obvious nature.

However, prior art references are not considered secondary considerations but rather primary evidence used to determine the obviousness of an invention. They represent the existing body of knowledge and inventions that a patent application is evaluated against. By identifying prior art, examiners can assess whether the claimed invention combines known elements in an obvious way, making it central to the obviousness analysis rather than a supporting argument like the other secondary considerations. Therefore, prior art references do not fall under the category of secondary considerations.