How does the AIA affect experimental use considerations?

The America Invents Act (AIA) has introduced changes that affect how experimental use is considered in patent law. The MPEP section on experimental use includes an editor’s note stating: 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).

While the fundamental principles of experimental use remain similar, there are some key differences:

• The MPEP directs readers to MPEP § 2159 et seq. to determine if an application is subject to FITF provisions.
• For applications under FITF, MPEP § 2150 et seq. provides guidance on examination procedures.
• The public use and on sale provisions under AIA are discussed in MPEP § 2152.02(c) through (e).

Inventors and patent practitioners should be aware of these changes and consult the appropriate MPEP sections based on whether their application falls under pre-AIA or AIA provisions.

To learn more:

• AIA
• experimental use
• FITF
• patent law