KEY FACTORS IN LITIGATION
During litigation, courts consider 13 factors in assessing whether a transaction was a commercial sale or instead for the purpose of an experimental use. The same factors govern the application of the experimental use exception to the public use bar. Several important factors are: (1) whether payment was made, (2) whether there was a secrecy obligation, (3) the degree of commercial exploitation during testing, and (4) whether the invention reasonably requires evaluation under actual conditions of use.
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