Can a non-sale commercial transaction be considered prior art under AIA?
Yes, under the AIA, a non-sale commercial transaction can potentially be considered prior art. The MPEP 2152.02(e) explicitly mentions:
“[A] commercial transaction that does not constitute a sale under the Uniform Commercial Code (see, e.g., Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041, 59 USPQ2d 1121 (Fed. Cir. 2001) and MPEP § 2133.03(e)(1)). Even if […] a transaction is not a sale, [it] may be prior art under the ‘otherwise available to the public’ provision of AIA 35 U.S.C. 102(a)(1), provided that the claimed invention is made sufficiently available to the public.”
This broadens the scope of what can be considered prior art, allowing for commercial activities that make the invention publicly available, even if they don’t meet the legal definition of a sale.
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