How does the AIA treat secret commercial use compared to pre-AIA law?
The treatment of secret commercial use under the AIA differs significantly from pre-AIA law. Under pre-AIA law, secret commercial use by the inventor could bar patentability. The MPEP states:
“[A]n inventor’s own prior commercial use, albeit kept secret, may constitute a public use or sale under [pre-AIA 35 U.S.C.] 102(b), barring him from obtaining a patent.”
However, under the AIA, the focus is on whether the use is available to the public. The MPEP clarifies:
“As discussed previously, public use under AIA 35 U.S.C. 102(a)(1) is limited to those uses that are available to the public.”
This means that under the AIA, a truly secret commercial use by the inventor would not necessarily bar patentability, as long as it wasn’t available to the public. However, inventors should be cautious, as any use that becomes available to the public could potentially be considered prior art under the AIA, subject to the exceptions in 35 U.S.C. 102(b)(1).
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