How 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 statutory bar under 35 U.S.C. 102(b), even if the use is not publicly visible.
• Commercial exploitation of the invention, even if kept secret, may start the clock on the one-year grace period.
• Non-commercial secret use (e.g., purely experimental use) does not trigger the statutory bar.
• The intent of the inventor is considered when determining if the use is commercial.

Inventors should be cautious about any commercial use of their invention, even if kept secret, as it may affect their ability to obtain a patent later.

To learn more:

• secret commercial use
• patentability
• statutory bar
• grace period