How does profit motive affect experimental use in patent law?
The presence of a profit motive does not automatically negate experimental use in patent law, but it can significantly impact how the use is perceived. According to MPEP 2133.03(e):
“However, profit motive and experimentation are not mutually exclusive. The fact that the inventor may have some commercial goal does not necessarily negate an experimental purpose.”
This means that while an inventor can have a commercial goal, the primary purpose of the use or sale must still be experimental for it to qualify as an exception to the on-sale bar. The key is to demonstrate that the main objective was to perfect or complete the invention, rather than to exploit it commercially.
Inventors should be cautious and maintain detailed records of their experimental activities, especially when there’s a potential profit involved, to help substantiate claims of experimental use if challenged.
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