MPEP Q & A 100: Activities Used as an Indication of Commercial Exploitation

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Question:

List two activities that can be used as an indication of commercial exploitation?

Answer:

The following activities should be used by the examiner as indicia of this subjective commercial intent:

  • Preparation of various contemporaneous “commercial” documents, e.g., orders, invoices, receipts, delivery schedules, etc.;
  • Preparation of price lists and distribution of price quotations;
  • Display of samples to prospective customers;
  • Demonstration of models or prototypes, especially at trade conventions, and even though no orders are actually obtained;
  • Use of an invention where an admission fee is charged; and
  • Advertising in publicity releases, brochures, and various periodicals.

Chapter Details:

The answer to this question can be found in chapter 2100 of the MPEP. This chapter covers patentability.

The answer is from the 9th Edition, Revision 07.2015. Depending on future changes to the MPEP, the question and answer may be applicable in later Editions or revisions.

Section Summary:

This question and answer comes from section 2133.03(e)(1) of the MPEP.  The following is a brief summary of section 2133.03(e)(1).

2133.03(e)(1)    Commercial Exploitation

This section expands on the topic of commercial exploitation. One policy of the on sale and public use bars is the prevention of inventors from exploiting their inventions commercially more than 1 year prior to the filing of a patent application. The commercial activity must legitimately advance the development of the invention towards completion.

This section also covers the significant factors indicative of commercial exploitation. This includes (but is not limited to) the preparation of price lists and displaying samples to prospective customers.

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