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Public Use Must Be for Intended Purpose of Invention to Trigger § 102(b) Bar

Client Alert | 1 min read | 05.31.07

In Motionless Keyboard Company v. Microsoft Corporation (No. 05-1497; May 29, 2007), the Federal Circuit affirms the district court’s decision of non-infringement but reverses the decision of invalidity. The two patents at issue, directed to an ergonomic keyboard, were developed by an independent inventor, who “traversed the patent system on a limited budget.” The district court held that both patents were invalid as the inventor demonstrated prototypes of his invention more than one year before the respective patent applications were filed.

On appeal, the Federal Circuit states that the public-use bar of 35 U.S.C. § 102(b) does not apply to either patent. The demonstration of one invention was protected by a non-disclosure agreement. With respect to the demonstration of the other invention, the panel holds that the prototype “was never connected to be used in the normal course of business to enter data into a system.” The panel distinguishes the instant facts from those in the Supreme Court’s 1881 decision in Egbert v. Lippman and concludes that “the disclosures in this record do not rise to the level of public use.”

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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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