How does commercial exploitation affect public use determinations?

Commercial exploitation plays a significant role in determining whether an invention has been in public use under pre-AIA 35 U.S.C. 102(b). The MPEP states:

“Commercial exploitation is a clear indication of public use, but it likely requires more than, for example, a secret offer for sale.”

(MPEP 2133.03(a))

This means that even if an invention is not openly visible or accessible to the public, commercial exploitation of the invention may still trigger the public use bar. Courts consider various factors when assessing commercial exploitation, including:

• The nature of the activity that occurred in public
• Public access to the use
• Confidentiality obligations imposed on those who observed the use
• The extent of commercial benefit derived from the use

It’s important to note that commercial exploitation is assessed in the context of the policies underlying the public use bar, which include discouraging the removal of inventions from the public domain and promoting prompt disclosure of inventions.

To learn more:

• commercial exploitation
• public use
• pre-AIA 35 U.S.C. 102(b)
• patent bar