How does market testing and commercialization information relate to patent disclosures?
Market testing, marketing, and commercialization activities can produce information material to patentability that should be disclosed to the USPTO. The MPEP 2015 states:
“Activities or documents associated with market testing, marketing, or commercialization by the patent applicant can also be material to patentability, and therefore, when material, should be disclosed to the USPTO.”
This requirement is illustrated in the case of GS Cleantech Corp. v. Adkins Energy LLC, where failure to disclose information about an offer for sale and reduction to practice led to a finding of inequitable conduct. Patent applicants should carefully consider whether their commercial activities generate information material to patentability and disclose such information to ensure patent validity.
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