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 is based on the principle that an inventor who commercially exploits an invention before filing a patent application has chosen to forfeit patent rights in favor of trade secret protection. It’s important to note that this applies to uses by the inventor or those working with the inventor. Secret uses by third parties without the inventor’s knowledge or consent would typically not constitute public use under this doctrine.
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