Chemical Engineering April 2019 - 53

Use
Public use of a claimed invention
more than one year before patent filing
may present a possible problem
for U.S. patent rights. For example,
in 2005, the Federal Circuit considered
whether use of the invention in
Invitrogen Corporation laboratories
invalidated its U.S. patent claims
[10]. Invitrogen had used its inventive
process for producing competent
E. coli cells in its laboratories
for more than one year before filing
a U.S. patent application. A patent
issued, and Invitrogen subsequently
sued Stratagene Holding Corporation
in the Western District of Texas
for infringement. During the litigation,
Stratagene argued that the patent
claims were invalid based on prior
use. The district court agreed. On
appeal, however, the Federal Circuit
disagreed and determined that
Invitrogen's use did not invalidate its
patent claims because it was not a
public use of the claimed invention.
The court reasoned that Invitrogen
did not sell the claimed process or
any products made using the process,
and it maintained the process
as a secret within the company. Although
Invitrogen's claims were not
invalidated in this instance, this case
may have turned out differently if the
court found, for example, that Invitrogen's
use of the invention was not
kept secret.
This cautionary tale demonstrates
that scientists should keep any use
of their inventions confidential. In addition,
out of an abundance of caution,
inventors should consider filing
a U.S. patent application within one
year of using their invention, or before
using their invention at all if they are
considering global patent protection.
Demonstrations and
communications
Demonstrations of a claimed invention
and communications about a
claimed invention more than one
year before patent filing may present
a possible problem for U.S. patent
rights. For example, in 1972, the
U.S. District Court for the Northern
District of Illinois considered whether
an inventor's demonstration of the
invention and a subsequent discussion
at an inter-company meeting
could be used to invalidate U.S. patent
claims [11]. Seeking to sell his
invention, the inventor had demonstrated
his machine for laying cable
and other materials underground to
an engineer at the Illinois Bell Telephone
Company in 1963. The Bell
Telephone engineer provided a written
report to his supervisor, who
then read it during an inter-company
meeting of telephone company engineers.
One year and three months
after the meeting, the inventor filed
a U.S. patent application. A patent
issued, and the owner subsequently
sued J.I. Case Co. in the Northern
District of Illinois for infringement.
During the litigation, J.I. Case argued
that the patent claims were invalid
based on prior disclosure during
the 1963 demonstration and intercompany
meeting. The district court
agreed, reasoning that the demonstration
and meeting were public
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Chemical Engineering April 2019

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