2133.03(e)(5) Experimentation and Degree of Supervision and Control [R-07.2022]
[Editor Note: This MPEP section may be applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note). See MPEP § 2159 et seq. to determine whether an application is subject to examination under the FITF provisions, and MPEP § 2150 et seq. for examination of applications subject to those provisions. See MPEP § 2152.02(c) through (e) for a detailed discussion of the public use and on sale provisions of AIA 35 U.S.C. 102.]
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 pre-AIA 35 U.S.C. 102(b) bar. In re Blaisdell, 242 F.2d 779, 784, 113 USPQ 289, 293 (CCPA 1957).