How does secret use of an invention affect its patentability?
Secret use of an invention can have significant implications for its patentability. While secret use does not typically constitute public use, it can still impact the ability to obtain a patent under certain circumstances. According to MPEP 2133.03(a):
“Secret use is not public use under 35 U.S.C. 102(b). However, a non-secret use by someone other than the applicant is a public use.”
This means that if an inventor keeps their invention entirely secret, it generally won’t trigger the public use bar. However, the MPEP also notes:
“Commercial exploitation of an invention as a trade secret may constitute a public use.”
This suggests that even if the use is secret, if it’s being commercially exploited, it might be considered public use. Additionally, secret use can potentially lead to issues with the 35 U.S.C. 102(a) novelty requirement if it results in a product being made available to the public. Inventors should be cautious about relying on secret use and consider filing patent applications promptly to avoid potential patentability issues.
To learn more: