How does customer awareness affect experimental use in patent law?
Customer awareness is a critical factor in determining whether a use qualifies as experimental. The MPEP highlights this by stating that The significant determinative factors in questions of experimental purpose are the extent of supervision and control maintained by an inventor over an invention during an alleged period of experimentation, and the customer’s awareness of the experimentation.
This means that if customers are aware that they are participating in or using an invention that is still under experimentation, it strengthens the case for experimental use. Conversely, if customers are unaware and believe they are using a finalized product, it may weaken the argument for experimental use and potentially lead to a public use bar.
The Federal Circuit emphasized this in Electromotive Div. of Gen. Motors Corp. v. Transportation Sys. Div. of Gen. Elec. Co., stating that control and customer awareness ordinarily must be proven if experimentation is to be found
. Inventors should ensure that any third parties involved in testing are clearly informed about the experimental nature of the use.
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