This post is part of a series of posts entitled A Guide To Intellectual Property Protection. For a comprehensive list of articles contained in this series, click here.
A patent will be denied if an invention was in public use or on sale more than one year prior to the date of application. However, there is an exception to this rule known as “experimental use.” The “experimental use” exception permits some public use of the product by an inventor in order to enable him or her to perfect the invention before applying for a patent. The exception does not apply to situations where the use or sale of the device is mainly for profit and commercial purposes and the experimentation is merely incidental. For example, market acceptance testing is not considered to be an experimental use.
Any public experimentation should be no more extensive than reasonably necessary for the perfection of the invention. It is up to the Examiner to determine whether the scope and length of the experimental activity is reasonable in terms of the intended purpose of the tests and the nature of the subject matter involved.
