What is the significance of control and supervision in experimental use?
Control and supervision are crucial factors in determining whether a use qualifies as experimental. According to the MPEP, 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 inventors must maintain a significant level of control over their invention during testing, especially when third parties are involved.
The Federal Circuit has emphasized this point 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
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