What are the key factors in proving experimental use?

According to the MPEP and relevant case law, the key factors in proving experimental use are:

• Inventor Control: The extent of supervision and control maintained by the inventor over the invention during the alleged period of experimentation.
• Customer Awareness: The level of awareness customers or third parties have about the experimental nature of the use.

The MPEP states: 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 is further supported by the Federal Circuit in Electromotive Div. of Gen. Motors Corp. v. Transportation Sys. Div. of Gen. Elec. Co., which emphasizes that control and customer awareness ordinarily must be proven if experimentation is to be found.

Inventors and patent attorneys should focus on documenting these aspects to strengthen claims of experimental use and avoid potential public use bars.

To learn more:

• experimental use
• inventor control
• customer awareness
• patent law