What constitutes public use when an inventor allows another to use the invention?
When an inventor allows another person to use the invention, it may constitute public use under pre-AIA 35 U.S.C. 102(b) if certain conditions are met. The MPEP provides guidance on this issue: “‘Public use’ of a claimed invention under pre-AIA 35 U.S.C. 102(b) occurs when the inventor allows another person to use the invention without…
Read MoreWhat 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…
Read MoreHow does use by independent third parties affect public use determinations?
Use of an invention by independent third parties can constitute public use under pre-AIA 35 U.S.C. 102(b) in certain circumstances. The MPEP provides guidance on this issue: “Any ‘nonsecret’ use of an invention by someone unconnected to the inventor, such as someone who has independently made the invention, in the ordinary course of a business…
Read MoreWhat does “in this country” mean in pre-AIA 35 U.S.C. 102(b)?
The phrase “in this country” in pre-AIA 35 U.S.C. 102(b) refers specifically to the United States and its territories. According to the MPEP: “The language ‘in this country’ in pre-AIA 35 U.S.C. 102(b) does not include other WTO or NAFTA member countries, but includes any State of the United States, the District of Columbia, and…
Read MoreHow 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),…
Read MoreWhat 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,…
Read MoreHow does experimental use affect public use in patent law?
Experimental use can negate what would otherwise be considered a public use in patent law. The MPEP 2133.03(e) states: “The use of an invention by the inventor himself, or of any other person under his direction, by way of experiment, and in order to bring the invention to perfection, has never been regarded as [a…
Read MoreCan 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…
Read MoreHow 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…
Read MoreWhat is the experimental use exception to the public use and on sale bars?
The experimental use exception is a legal doctrine that can negate what would otherwise be considered a public use or sale under pre-AIA 35 U.S.C. 102(b). This exception allows inventors to test and perfect their inventions without triggering the statutory bars. As stated in MPEP 2133.03(e): “The question posed by the experimental use doctrine is…
Read More