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Court defines ‘public use’ that can bar inventors from receiving a patentOctober 12, 2005

Under section 102(b) of the patent laws, an inventor is barred from receiving a patent if, among other things, the invention to be patented was either on sale or in public use more than one year before the filing date of the patent application. In Invitrogen Corp. v. Biocrest Manufacturing, L.P., the Federal Circuit discussed these two related statutory bars, the ‘on sale bar’ and the ‘public use bar.’ First, it noted that the Supreme Court had defined the meaning of ‘the invention’ in its 1998 decision in Pfaff v. Wells Electronics, Inc. In order to be on sale under the statute, the Court decided that the invention must be ‘ready for patenting.’ Pfaff was decided in the context of the on sale bar, however the Federal Circuit held that the same logic applies to the public use bar as well, and adopted the ready for patenting requirement in that context as well.Next, the Federal Circuit turned to what it means to be in ‘public use.’ The court stated that an invention can be found to be in public use if it either ‘(1) was accessible to the public, or (2) was commercially exploited.’ Relevant evidence in making this determination includes evidence of experimentation, public access, the nature of any public activity, and confidentiality obligations (or absence thereof). Based on this newly-defined test, inventors should ensure that if they choose to use their invention prior to filing for a patent, it will not fall under the new definition of a ‘public use,’ and therefore be barred from receiving a patent. For the complete decision, log on to

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