The public use bar has long been a shield protecting the public against unscrupulous inventors hoping to create public dependency before seeking patent monopolization. Courts have repeatedly sided in favor of protecting the public interest. But how much protection do inventors themselves deserve in this battle of interests? This comment examines the history and application of the tests for public use utilized by the courts. Going further, the comment highlights the Federal Circuit’s low corroborating evidence requirement in Pronova Biopharma Norge AS v. Teva Pharmaceuticals USA and questions whether this comports with the policies underlying patent law or too readily turns an allegation of public access into an invocation of public use.
Benjamin Lee, Can I Show You Something? The Public Use Bar and Overemphasis on Public Access, 14 J. Marshall Rev. Intell. Prop. L. 590 (2015)