What is the examiner’s role in evaluating experimental use claims?
When an applicant claims experimental use to counter a prima facie case of unpatentability, the patent examiner has a specific role in evaluating these claims. According to MPEP 2133.03(e)(4):
“Once alleged experimental activity is advanced by an applicant to explain a prima facie case of unpatentability, 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.”
The examiner’s role is to assess whether the claimed experimental activities are reasonable given the applicant’s stated experimental purpose and the nature of the invention. This evaluation involves considering various factors, including those listed in the MPEP, to determine if the use was genuinely experimental or if it constituted a public use or sale that would bar patentability.
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