MPEP Section 2133.03(e)(5), Experimentation and Degree of Supervision and Control

Executive summary:

This document contains Section 2133.03(e)(5) ("Experimentation and Degree of Supervision and Control ") of the Manual of Patent Examining Procedure (the "M.P.E.P."), Eighth Edition, Eighth Revision (July 2010). This page was last updated in January 2011. You may return to the section index to find a particular section. Alternatively, you may search the MPEP using the search box that appears on the left side of every page of BitLaw--you may restrict your search to the MPEP on the search results page.

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2133.03(e)(5) Experimentation and Degree of Supervision and Control [R-5]

THE INVENTOR MUST MAINTAIN SUFFICIENT CONTROL OVER THE INVENTION DURING TESTING BY THIRD PARTIES

**>The<significant determinative *>factors< in questions of experimental purpose *>are< the extent of supervision and control maintained by an inventor over an invention during an alleged period of experimentation >, and the customer's awareness of the experimentation. Electromotive Div. of Gen. Motors Corp. v. Transportation Sys. Div. of Gen. Elec. Co., 417 F.3d 1203, 1214,75 USPQ2d 1650, 1658 (Fed. Cir. 2005)("control and customer awareness ordinarily must be proven if experimentation is to be found")<. Once a period of experimental activity has ended and supervision and control has been relinquished by an inventor without any restraints on subsequent use of an invention, an unrestricted subsequent use of the invention is a 35 U.S.C. 102(b) bar. In re Blaisdell, 242 F.2d 779, 784, 113 USPQ 289, 293 (CCPA 1957).