What is the experimental use exception to the public use and on sale bars?
The experimental use exception is a legal doctrine that can negate what would otherwise be considered a public use or sale under pre-AIA 35 U.S.C. 102(b). This exception allows inventors to test and perfect their inventions without triggering the statutory bars.
As stated in MPEP 2133.03(e):
“The question posed by the experimental use doctrine is ‘whether the primary purpose of the inventor at the time of the sale, as determined from an objective evaluation of the facts surrounding the transaction, was to conduct experimentation.'”
Key factors in determining if the experimental use exception applies include:
- The necessity for public testing
- The amount of control retained by the inventor
- The nature of the invention
- The length of the test period
- Whether payment was made
- Whether there was a secrecy obligation
- Whether records of the experiment were kept
- The degree of commercial exploitation during testing
It’s important to note that market testing or commercial exploitation under the guise of experimentation will not qualify for this exception. The primary purpose must be experimentation, not commercial gain.
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