What are the key factors in determining if an activity qualifies as experimental use?

What are the key factors in determining if an activity qualifies as experimental use?

Determining whether an activity qualifies as experimental use involves considering several factors. According to MPEP 2133.03(e), key factors include:

• The nature of the activity
• The length of the test period
• Whether payment was made for the device
• Whether there was a secrecy agreement
• Whether records were kept
• Who conducted the experiments
• The degree of commercial exploitation during testing

The MPEP states, “Once alleged experimental activity is advanced by an applicant to negate a pre-AIA 35 U.S.C. 102(b) rejection, the examiner must determine whether the scope and length of the activity were reasonable in terms of the experimental purpose intended by the applicant and the nature of the subject matter involved.” This assessment helps distinguish genuine experimentation from activities that might trigger the public use or on-sale bar.

To learn more:

• experimental use
• patent law
• invention testing
• factors