CAFC addresses on-sale bar: importance of customer awareness to prove experimentation

In Electromotive Div. of General Motors [GM] vs. Transportation Division of General Electric [GE], the CAFC re-visited the on-sale bar of Pfaff v. Wells Electronics, 525 US 55 (1998). Although the Supreme Court had suggested experimental use [by the patent applicant] was fairly straightforward, this case suggests otherwise.

At issue, was whether a commercial offer for sale had occurred.

Notice the CAFC states: "Few decisions address how to determine if a pre-critical date public use or sale is experimental... "

Here, the CAFC determines that a customer's awareness of the purported testing in the context of a sale is critical. This is consistent with In re Dybel, 524 F.2d 1393 (CCPA 1975).

For a determination of experimentation (and thus an avoidance of the on-sale bar), control and customer awareness ordinarily must be found.