Secret Third-Party Use Does Not Constitute A Public Use

In Delano Farms Co. v. California Table Grape Commission, No. 14-1030 (Fed. Cir. Jan. 9, 2015), the Federal Circuit affirmed the district court's finding that a secret third-party use did not constitute an invalidating public use under the public use bar of 35 U.S.C. § 102(b).

The U.S. Department of Agriculture ("USDA") owns two plant patents—U.S. Patent Nos. PP16,229 ("the '229 patent") and PP16,284 ("the '284 patent")—that claim table grape varieties. The California Table Grape Commission ("Commission") is the exclusive licensee of both plant patents, and the Commission sublicenses the patents to grape growers in California. Plaintiffs, a group of California grape growers, sued the USDA and the Commission, challenging the validity and enforceability of the patents, and arguing that the two grape varieties were in public use more than one year before the applications for the patents were filed, and that the plant patents are thus invalid under the public use bar of