Is market testing considered experimental activity for patent purposes?

Question

Accepted Answer

Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-30 10 Rules 5 Related FAQs 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. No, market testing is not considered experimental activity for patent purposes. The MPEP 2133.03(e)(6) clearly states: “Experimentation to determine product acceptance, i.e., market testing, is typical of a trader’s and not an inventor’s experiment and is thus not within the area of permitted experimental activity.” This means that testing an invention to gauge consumer interest or market acceptance does not qualify as experimental use and may be considered public use or sale, potentially affecting patentability. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Market Testing Not Experimental Use MPEP 2133.03(e) Primary Purpose Must Be Experimentation MPEP 2133.03(e) Required Requirement for Determining Public Use and On Sale Under AIA MPEP 2133.03(e) Permitted Experimental Use Exception Under Pre-AIA 102(b) MPEP 2133.03(e) Experimental Use Exception for Pre-AIA Section 102(b) MPEP 2133.03(e) Experimental Use Does Not Bar Public Disclosure If Aimed at Perfecting Invention MPEP 2133.03(e) Public Use, Sale, Publication, or Patent Discloses Invention MPEP 2133 Primary Purpose Must Be Experimentation MPEP 2133.03(e) Primary Purpose of Sale Must Be Experimentation MPEP 2133.03(e) Commercial Exploitation Must Be Incidental to Experimentation MPEP 2133.03(e) Required Other Related FAQs 5 FAQs Collapse How does experimental activity apply to design patents? What types of testing are allowed as experimental use for inventions with no known utility? What activities are not considered experimental use in patent law? What constitutes permitted experimental activity in patent law? How does the America Invents Act (AIA) affect the interpretation of experimental use?