Can a secret commercial use be considered a “public use” for patent purposes?
Yes, a secret commercial use can be considered a “public use” for patent purposes. The MPEP 2152.02(c) states: “[A] secret or confidential use by an inventor or someone working with the inventor, which use is commercial in character, is considered a public use even though no member of the public viewed the use.” This interpretation…
Read MoreHow does AIA 35 U.S.C. 102(a)(1) treat secret commercial use or sale?
Under AIA 35 U.S.C. 102(a)(1), secret commercial use or sale can still qualify as prior art, similar to pre-AIA law. The Supreme Court clarified this in the Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc. case. As stated in the MPEP: “In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., 139 S.Ct. 628, 129 USPQ2d…
Read MoreHow does secret commercial use affect patentability?
Secret commercial use of an invention can significantly impact patentability. According to MPEP 2133.03(a): “Secret use is use by the inventor or by persons under the inventor’s control that is not visible to the public. Secret use may be commercial use or non-commercial use.” Key points about secret commercial use: It can trigger the one-year…
Read MoreHow 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…
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