§273 Defense to Infringement Based on Prior Commercial Use

Summary

Lets a person defend against a patent claim if they, in good faith, used the same process, machine, product, or material in U.S. business at least 1 year before the earlier of the patent’s effective filing date or the date the invention was publicly disclosed in a way that fits section 102(b). The person must prove the defense by clear and convincing evidence. Time spent in required premarketing safety or effectiveness review (including any period in section 156(g)) counts as commercial use. Use by a nonprofit research lab, university, or hospital that benefits the public also counts, but only for continued, noncommercial use inside that institution. Only the person who did or supervised the use, or a closely related company, may claim the defense. The right can’t be freely sold or licensed except as part of selling the whole business line, and then it applies only at sites already using the subject matter. The defense is barred if the subject matter came from the patent owner or its close associates. It covers only the specific thing actually used (with some leeway for quantity changes and non-infringing improvements). If commercial use was abandoned, earlier use can’t be used later. If the invention was owned by or had to be assigned to a college, university, or a tech-transfer group when made, the defense is not allowed unless the needed development could not have been done with federal funds. If someone pleads the defense without a reasonable basis and is found to infringe, the court can award attorney fees. Proving this defense does not by itself make the patent invalid under sections 102 or 103.