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"Public use" has been described as including any use of a claimed invention by a person other than an inventor who is under no limitation, restriction, or obligation of secrecy to an inventor. Whether a public use has occurred is a question of law. In considering whether a particular use was a public use within the meaning of 35 U.S.C.S. § 102(b), courts consider the totality of circumstances in conjunction with the policies underlying the public use bar These policies include: (1) discouraging the removal, from the public domain, of inventions that the public reasonably has come to believe are freely available; (2) favoring the prompt and widespread disclosure of inventions; (3) allowing an inventor a reasonable amount of time following sales activity to determine the potential economic value of a patent; and (4) prohibiting an inventor from commercially exploiting an invention for a period greater than the statutorily prescribed time.
Plaintiffs Baxter International, Inc. and Baxter Healthcare Corporation had a patent for a sealless centrifuge that was used to separate blood into its components and sued defendants for infringement. Defendants Cobe Laboratories, Inc. and Cobe BCT, Inc. alleged prior public use that involved two research scientists at the National Institutes of Health (NIH), who were not connected to the inventor named by plaintiffs' patent. Before the critical date, a research scientist had centrifuge built at NIH and determined that it worked properly for its original purpose, as a separator of blood into its components. The scientist also tested the centrifuge's suitability for his own purposes. The district court held on summary judgment that plaintiffs’ asserted patent claims were invalid under 35 U.S.C.S. § 102(b) on the ground of a prior public use. On appeal, plaintiffs argued that purported public use was negated by fact that it was experimental use.
Were the plaintiffs’ asserted patent claims invalid under 35 U.S.C.S. § 102(b) on the ground of a prior public use?
The court held that public testing before the critical date by a third party for his own unique purposes of invention previously reduced to practice and obtained from someone other than a patentee, when such testing was independent of and not controlled by patentee, was an invalidating public use, not experimental use. Accordingly, the decision of the district court was affirmed.