What constitutes “secret use” in patent law?

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. What constitutes “secret use” in patent law? In patent law, “secret use” refers to the use of an invention that is kept confidential and not accessible to the public. The Manual of Patent Examining Procedure (MPEP) 2152.02(c) states: “An inventor’s private use or sale of the invention is not prior art under AIA 35 U.S.C. 102(a)(1) if it was not publicly accessible.” This means that if an inventor uses their invention in a way that maintains its secrecy, such use does not count as “public use” and does not affect the patentability of the invention. However, it’s important to note that secret commercial use by the inventor for more than one year before filing a patent application may still impact patentability under the 35 U.S.C. 102(b) on-sale bar. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Definition of Prior Art Under AIA 35 U.S.C. 102(a) MPEP 2152 Definition of Prior Art Under AIA 35 U.S.C. 102(a) MPEP 2152 Changes to Prior Art Under AIA 35 U.S.C. 102 MPEP 2152 Exceptions to Prior Art Under AIA 102(b) MPEP 2152 Prohibited In Public Use Only Applies Within Country MPEP 2152.02(c) Invention Used by Third Party Is Not Public Use MPEP 2152.02(c) Evidence of Public Use for Prior Art Rejection MPEP 2152 Permitted Public Use or Sale Abroad Counts as Prior Art Under AIA MPEP 2152 Disclosure Not Prior Art if Owned by Same Person MPEP 2152 Critical Date for Pre-AIA Public Use Bar MPEP 2152.02(c) Other Related FAQs 5 FAQs Collapse How does the AIA define &#8220;public use&#8221; for patent purposes? How does the AIA&#8217;s public use provision differ from pre-AIA law? How is &#8220;public use&#8221; determined under AIA 35 U.S.C. 102(a)(1)? What is the significance...