Pursuant to 35 U.S.C. § 102(b), a defendant can avoid liability for patent infringement if the patented invention was in public use in the United States more than one year prior to the date of patent application. Although "public use" is broadly construed to include most nonsecret uses, a nonsecret use pursued primarily for bona fide experimental purposes is merely an "experimental use." Experimental use negates the conclusion that an invention was in public use within the meaning of section 102(b). In Lough v. Brunswick Corp., the U.S. Court of Appeals for the Federal Circuit held that the issues of public use and experimental use are questions of law. Accordingly, the Federal Circuit can decide whether a particular invention was in public use or in experimental use without deference to a jury's conclusion. This Note argues that, even if public use is properly classified as a question of law, experimental use is a question of fact that should be reviewed under a deferential standard. Because experimental use negates public use as a matter of law, a jury's conclusion that an invention was not in public use should be upheld if substantial evidence supports the conclusion that the disputed prior use was primarily for bona fide experimental purposes.
Chad P. Webster,
Notes and Comments,
In the Wake of Lough v. Brunswick Corp.: Who Decides Experimental Purpose in 35 U.S.C. § 102(b) Public Use Cases?,
73 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol73/iss4/12