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On-sale bar cannot be avoided by experimentation conducted by patentee's customer

By McKee, Voorhees & Sease, P.L.C.

In a decision Thursday, the Federal Circuit provided additional guidance on the on-sale bar of § 102(b).  In the case, the patentee developed a series of prototypes that were then sold to its customer, who then experimented with the prototypes and requested modifications to the prototypes.  The prototypes were also accompanied by offers to sell production models of the prototypes.  The court was clear in that the experimental use exception only concerns the actions of the inventors and their agents, not another party doing experimental testing for a particular purpose.  As a result, despite the fact that the customer was experimenting with the prototypes, that experimentation could not negate the on-sale bar of § 102(b).

Two of the panel's three judges also filed a concurring opinion.  In that opinion, Judges Prost and Dyk "point out the confusion" in Federal Circuit law when it comes to the interaction between experimental use and the on-sale bar.  While this case is not the proper vehicle, it's safe to add this issue to the list of near-future en banc issues for the court.

More detail of Atlanta Attachment Co. v. Leggett & Platt, Inc. after the jump.

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Full post as published by FileWrapper on February 25, 2008 (boomark / email).