Can a secret use of an invention constitute public use?

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“[S]ecrecy of use alone is not sufficient to show that existing knowledge has not been withdrawn from public use; commercial exploitation is also forbidden.”

(MPEP 2133.03(a))

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:

• public use
• secret use
• commercial exploitation
• pre-AIA 35 U.S.C. 102(b)
• patent bar