What types of testing are allowed as experimental use for inventions with no known utility?

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.

For inventions with no known utility, certain types of testing are allowed as experimental use. The MPEP 2133.03(e)(6) provides guidance on this:

“[W]here an invention relates to a chemical composition with no known utility, i.e., a patent application for the composition could not be filed (35 U.S.C. 101; 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph), continued testing to find utility would likely be permissible, absent a sale of the composition or other evidence of commercial exploitation.”

This means that for inventions lacking a known utility, ongoing experimentation to discover a utility is generally allowed and won’t be considered public use or sale. However, any commercial exploitation during this period could jeopardize the experimental nature of the activity.