What constitutes a “public use” under pre-AIA 35 U.S.C. 102(b)?
This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.
A “public use” under pre-AIA 35 U.S.C. 102(b) occurs when the invention is both in public use before the critical date and ready for patenting. The Federal Circuit in Invitrogen Corp. v. Biocrest Manufacturing L.P. outlined a two-part test:
- The purported use was accessible to the public; or
- The invention was commercially exploited.
The court stated: “The proper test for the public use prong of the [pre-AIA] § 102(b) statutory bar is whether the purported use: (1) was accessible to the public; or (2) was commercially exploited.”
(MPEP 2133.03(a))
It’s important to note that commercial exploitation is a clear indicator of public use, but it may require more than just a secret offer for sale. The test also considers factors such as the nature of the public activity, public access, confidentiality obligations, and commercial exploitation.