What factors indicate commercial exploitation in patent law?

The MPEP outlines several factors that can indicate commercial exploitation, which may negate the experimental use exception. These include:

• Preparation of commercial documents (orders, invoices, receipts)
• Preparation and distribution of price lists and quotations
• Display of samples to potential customers
• Demonstration of models or prototypes, especially at trade conventions
• Charging admission fees for use of an invention
• Advertising in various media

As stated in the MPEP, “As the degree of commercial exploitation surrounding the alleged experimental activity increases, the burden on an applicant to establish clear and convincing evidence of experimental activity with respect to a public use becomes more difficult.” (MPEP 2133.03(e)(1))

To learn more:

• commercial exploitation
• experimental use
• patent law
• prior art
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