- Sec. 273 (“Prior Commercial Use”): Read it, and then forget it. It rarely will be useful! (Reportedly, as of 09/15/15, it has never been successfully asserted in its 19-year history.)
- AIA: Establishes limited defense if the accused commercially used the accused subject matter early enough. AIA broadens Sec. 273 to any commercial process or machine, manufacture or composition of matter used in a commercial process (not just method of conducting business, as before), in U.S., but the asserted commercial use (internal or not) must have occurred at least a year before the earlier of the claimed invention’s effective-filing-date or disclosure to the public by the inventor or one who obtained it from inventor. Clear and convincing evidence burden of proof. If lose infringement and lose this defense without demonstrating reasonable basis, “the court shall find the case exceptional for the purpose of awarding attorney fees.” Several exceptions and limitations (including: good faith use not derived from patent owner, personal defense, limited to claims covering subject matter triggering the defense, lost prospectively if use abandoned, inapplicable to University claimed inventions). 35 U.S.C. § 273 (AIA) {AIA version effective for patents issued after 09/16/11}.