Overview[]
U.S. patent law[]
The public use bar under 35 U.S.C. §102(b) arises where the invention is in public or commercial use before the critical date and is ready for patenting.[1] As explained by the Federal Circuit:
| “ | The proper test for the public use prong of the § 102 (b) statutory bar is whether the purported use: (1) was accessible to the public; or (2) was commercially exploited. Commercial exploitation is a clear indication of public use, but it likely requires more than, for example, a secret offer for sale. Thus, the test for the public use prong includes the consideration of evidence relevant to experimentation, as well as, inter alia , the nature of the activity that occurred in public; public access to the use; confidentiality obligations imposed on members of the public who observed the use; and commercial exploitation.. That evidence is relevant to discern whether the use was a public use that could raise a bar to patentability, but it is distinct from evidence relevant to the ready for patenting component of Pfaff 's two-part test, another necessary requirement of a public use bar.[2] | ” |
There may be a public use of an invention absent any sales activity.