How does commercial exploitation affect experimental use in patent law?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Commercial exploitation can significantly impact whether an activity qualifies as experimental use in patent law. MPEP 2133.03(e) emphasizes that “The experimental use exception does not include market testing where the inventor is attempting to gauge consumer demand for his claimed invention.” This means that activities primarily aimed at commercial gain, rather than genuine experimentation, may not be protected by the experimental use exception. The degree of commercial exploitation during testing is a crucial factor in determining whether the use is truly experimental or if it crosses into public use or on-sale territory, potentially jeopardizing patent rights.