How does the America Invents Act (AIA) affect the interpretation of experimental use?
The America Invents Act (AIA) has implications for how experimental use is interpreted in patent law. The MPEP 2133.03(e)(4) notes:
“[This MPEP section may be applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note). See MPEP § 2159 et seq. to determine whether an application is subject to examination under the FITF provisions, and MPEP § 2150 et seq. for examination of applications subject to those provisions.]”
This means that while the factors for determining experimental use remain relevant, they may be applied differently under the AIA’s first-inventor-to-file system. Applicants and examiners should refer to MPEP § 2159 to determine if an application falls under the FITF provisions, and MPEP § 2150 for guidance on examining such applications. Additionally, MPEP § 2152.02(c) through (e) provide detailed discussions on public use and on-sale provisions under AIA 35 U.S.C. 102.
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