What is the significance of intent in determining public use or on-sale bar?

The intent of the inventor is not sufficient alone to determine whether a public use or on-sale bar applies. As stated in MPEP 2133.03(e)(2): “When sales are made in an ordinary commercial environment and the goods are placed outside the inventor’s control, an inventor’s secretly held subjective intent to ‘experiment,’ even if true, is unavailing…

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How are improper grounds for reexamination handled?

Improper grounds for reexamination are those not based on prior art patents or printed publications. The MPEP provides guidance on how to handle such grounds: “If arguments are presented as to grounds not based on prior art patents or printed publications, such as those based on public use or on sale under 35 U.S.C. 102(b),…

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What factors do courts consider in determining if an invention was offered for sale primarily for experimentation?

Courts consider several factors to determine if a claimed invention was offered for sale primarily for experimentation. According to MPEP 2133.03(e)(4), these factors include: “(1) the necessity for public testing, (2) the amount of control over the experiment retained by the inventor, (3) the nature of the invention, (4) the length of the test period,…

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Can experimental use negate the on-sale bar?

While experimental use can potentially negate the on-sale bar, it becomes increasingly difficult to prove as commercial exploitation increases. The MPEP states: “As the degree of commercial exploitation in public use or sale activity increases, the burden on an applicant to establish clear and convincing evidence of experimental activity with respect to a public use…

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How does the location of experimental use affect patent rights?

The location where experimental use occurs can have significant implications for patent rights. The MPEP 2133.03(e)(5) provides guidance on this matter: “Testing or experimentation performed in public may negate an assertion that there was a public use which was experimental.” This statement indicates that while public testing doesn’t automatically disqualify an activity from being considered…

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