U.S. Patent Nos. 7,670,358 and 8,361,121 are directed to correction of spinal column anomalies (page 3). By July 2003, the inventor had a working tool, using the tool in August and October 2003 (pages 7-8). By January 2004, the inventor believed that the tool worked as intended (page 8). An abstract was submitted on February 2004 for a July 2004 conference (page 8). A patent application was filed on December 30, 2004 (page 8). For public use more than one year before December 30, 2004, the tool was not ready for patenting (page 11). The tool was not ready for patenting and the use was only experimental prior to the critical date of December 2003 (pages 11-13). For a reduction to practice to show public use, the inventor needs to have determined that the invention would work for the intended purpose (page 14). Since the conclusion of working for intended purpose did not occur prior to January 2004, there was no public use in the 2003 surgeries (page 16). The intended purpose need not be stated in the claim (pages 19-20). The surgeries included other people but there was an expectation of confidentiality and control of the tool was not surrendered (pages 23-24). Compensation for the surgeries was not compensation for the invention and the surgeries were part of experimental use, so there is no prior sale (pages 24-27).
Hindsight: The easy answer here is earlier filing of the application. It is not known when the patent prosecutor became involved, but the earliest use could have been treated as a bar event even if not a bar event. Thus, filing the application by August 2004 (within one year of the first surgery) would have avoided a lot of legal analysis by the court and shortened a few briefs. It may be worth exploring control, confidentiality, and experimentation, including records, for any invention reduced to practice before filing in order to better identify a deadline for filing an application.