How does commercial exploitation affect the public use and on sale bars?
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 is a significant factor in determining whether an invention has been in public use or on sale under pre-AIA 35 U.S.C. 102(b). Even if an inventor claims experimental use, evidence of commercial exploitation can negate this defense and trigger the statutory bars.
As stated in MPEP 2133.03(e)(1):
“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 becomes more difficult.”
Factors that may indicate commercial exploitation include:
- Preparation of commercial documents (e.g., orders, invoices, receipts)
- Preparation and distribution of price lists and quotations
- Display of samples to prospective customers
- Demonstration of models or prototypes, especially at trade conventions
- Advertising in publicity releases, brochures, and periodicals
It’s important to note that while some level of incidental commercial benefit may be permissible in the context of genuine experimentation, any activity primarily aimed at market penetration or commercial gain is likely to trigger the statutory bars.