When Public Use Qualifies For The Experimental Use Exception To 35 U.S.C. § 102(b)

Some inventions require testing before they are ready for patenting, and sometimes that testing requires use by the public. A recent decision from the Federal Circuit provides additional guidance on what activities qualify for the experimental use exception to the public use bar of 35 U.S.C. § 102(b).

In Polara Engineering Inc. v. Campbell Co., the patent at issue relates to an accessible pedestrian signal system ("APS"). More than one year prior to filing a patent application, Polara installed prototypes of the APS at public intersections. The Federal Circuit agreed with the lower court that these installations fall within the experimental use exception to the public use bar.

At each of the installations, Polara monitored operation of the APS; in several instances, problems were detected and Polara modified the system to overcome those problems. The cities of Fullerton, CA and Burnaby, Canada, where the APS was tested, were not required to pay for the systems.