Patent Law FAQ
This FAQ answers all your questions about patent law, patent procedure, and the patent examination process.
MPEP 2100 – Patentability (3)
Yes, a non-profit sale can trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP clearly states:
A “sale” need not be for profit to bar a patent. If the sale was for the commercial exploitation of the invention, it is “on sale” within the meaning of pre-AIA 35 U.S.C. 102(b).
(MPEP 2133.03(b))
This interpretation is supported by case law, specifically In re Dybel. The key factor is not whether a profit was realized, but whether the sale was for commercial exploitation of the invention. Even if no profit is made, if the sale was intended to commercially exploit the invention, it can still trigger the on-sale bar.
To learn more:
Yes, in some circumstances, a secret or confidential use of an invention can constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP explains:
“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”
This means that even if an invention is used secretly, if it’s being commercially exploited, it may still be considered a public use. However, the mere fact that an invention is used internally by the inventor or their company to develop future products that are never sold is not sufficient by itself to create a public use bar.
It’s important to note that “public” is not necessarily synonymous with “non-secret.” The determination of whether a use is public depends on various factors, including the nature of the activity, public access, confidentiality obligations, and commercial exploitation.
To learn more:
For inventions with no known utility, certain types of testing are allowed as experimental use. The MPEP 2133.03(e)(6) provides guidance on this:
“[W]here an invention relates to a chemical composition with no known utility, i.e., a patent application for the composition could not be filed (35 U.S.C. 101; 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph), continued testing to find utility would likely be permissible, absent a sale of the composition or other evidence of commercial exploitation.”
This means that for inventions lacking a known utility, ongoing experimentation to discover a utility is generally allowed and won’t be considered public use or sale. However, any commercial exploitation during this period could jeopardize the experimental nature of the activity.
To learn more:
MPEP 2133.03(A) – "Public Use" (1)
Yes, in some circumstances, a secret or confidential use of an invention can constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP explains:
“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”
This means that even if an invention is used secretly, if it’s being commercially exploited, it may still be considered a public use. However, the mere fact that an invention is used internally by the inventor or their company to develop future products that are never sold is not sufficient by itself to create a public use bar.
It’s important to note that “public” is not necessarily synonymous with “non-secret.” The determination of whether a use is public depends on various factors, including the nature of the activity, public access, confidentiality obligations, and commercial exploitation.
To learn more:
MPEP 2133.03(B) – "On Sale" (1)
Yes, a non-profit sale can trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP clearly states:
A “sale” need not be for profit to bar a patent. If the sale was for the commercial exploitation of the invention, it is “on sale” within the meaning of pre-AIA 35 U.S.C. 102(b).
(MPEP 2133.03(b))
This interpretation is supported by case law, specifically In re Dybel. The key factor is not whether a profit was realized, but whether the sale was for commercial exploitation of the invention. Even if no profit is made, if the sale was intended to commercially exploit the invention, it can still trigger the on-sale bar.
To learn more:
MPEP 2133.03(E)(6) – Permitted Experimental Activity And Testing (1)
For inventions with no known utility, certain types of testing are allowed as experimental use. The MPEP 2133.03(e)(6) provides guidance on this:
“[W]here an invention relates to a chemical composition with no known utility, i.e., a patent application for the composition could not be filed (35 U.S.C. 101; 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph), continued testing to find utility would likely be permissible, absent a sale of the composition or other evidence of commercial exploitation.”
This means that for inventions lacking a known utility, ongoing experimentation to discover a utility is generally allowed and won’t be considered public use or sale. However, any commercial exploitation during this period could jeopardize the experimental nature of the activity.
To learn more:
Patent Law (3)
Yes, a non-profit sale can trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP clearly states:
A “sale” need not be for profit to bar a patent. If the sale was for the commercial exploitation of the invention, it is “on sale” within the meaning of pre-AIA 35 U.S.C. 102(b).
(MPEP 2133.03(b))
This interpretation is supported by case law, specifically In re Dybel. The key factor is not whether a profit was realized, but whether the sale was for commercial exploitation of the invention. Even if no profit is made, if the sale was intended to commercially exploit the invention, it can still trigger the on-sale bar.
To learn more:
Yes, in some circumstances, a secret or confidential use of an invention can constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP explains:
“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”
This means that even if an invention is used secretly, if it’s being commercially exploited, it may still be considered a public use. However, the mere fact that an invention is used internally by the inventor or their company to develop future products that are never sold is not sufficient by itself to create a public use bar.
It’s important to note that “public” is not necessarily synonymous with “non-secret.” The determination of whether a use is public depends on various factors, including the nature of the activity, public access, confidentiality obligations, and commercial exploitation.
To learn more:
For inventions with no known utility, certain types of testing are allowed as experimental use. The MPEP 2133.03(e)(6) provides guidance on this:
“[W]here an invention relates to a chemical composition with no known utility, i.e., a patent application for the composition could not be filed (35 U.S.C. 101; 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph), continued testing to find utility would likely be permissible, absent a sale of the composition or other evidence of commercial exploitation.”
This means that for inventions lacking a known utility, ongoing experimentation to discover a utility is generally allowed and won’t be considered public use or sale. However, any commercial exploitation during this period could jeopardize the experimental nature of the activity.
To learn more:
Patent Procedure (3)
Yes, a non-profit sale can trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP clearly states:
A “sale” need not be for profit to bar a patent. If the sale was for the commercial exploitation of the invention, it is “on sale” within the meaning of pre-AIA 35 U.S.C. 102(b).
(MPEP 2133.03(b))
This interpretation is supported by case law, specifically In re Dybel. The key factor is not whether a profit was realized, but whether the sale was for commercial exploitation of the invention. Even if no profit is made, if the sale was intended to commercially exploit the invention, it can still trigger the on-sale bar.
To learn more:
Yes, in some circumstances, a secret or confidential use of an invention can constitute public use under pre-AIA 35 U.S.C. 102(b). The MPEP explains:
“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”
This means that even if an invention is used secretly, if it’s being commercially exploited, it may still be considered a public use. However, the mere fact that an invention is used internally by the inventor or their company to develop future products that are never sold is not sufficient by itself to create a public use bar.
It’s important to note that “public” is not necessarily synonymous with “non-secret.” The determination of whether a use is public depends on various factors, including the nature of the activity, public access, confidentiality obligations, and commercial exploitation.
To learn more:
For inventions with no known utility, certain types of testing are allowed as experimental use. The MPEP 2133.03(e)(6) provides guidance on this:
“[W]here an invention relates to a chemical composition with no known utility, i.e., a patent application for the composition could not be filed (35 U.S.C. 101; 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph), continued testing to find utility would likely be permissible, absent a sale of the composition or other evidence of commercial exploitation.”
This means that for inventions lacking a known utility, ongoing experimentation to discover a utility is generally allowed and won’t be considered public use or sale. However, any commercial exploitation during this period could jeopardize the experimental nature of the activity.
To learn more: