To rely on equivalence for an obviousness rejection, what must be recognized in the prior art?

In the context of an obviousness rejection in patent law, relying on equivalence in prior art means that one must demonstrate that the prior art recognizes the equivalence of the claimed invention. This recognition is crucial because, for a prior art reference to serve as a basis for an obviousness determination, it must clearly show that the equivalent elements are acknowledged within the context of the art.

If the equivalency is simply assumed or theoretical, it does not carry the same weight in the analysis. The prior art must explicitly recognize that the elements in question are indeed equivalent, providing a solid foundation for the assertion that combining them could lead an ordinary person skilled in the art to arrive at the claimed invention. Without such recognition, the argument for obviousness weakens significantly, as it relies on the understanding and consensus of skilled practitioners in the field.

This understanding is what makes the recognition of equivalency in the prior art a key element in establishing an obviousness rejection, reinforcing the principle that patentability should account for what is already known and acknowledged by experts in the relevant area of technology.