Can secret commercial activity be considered “on sale” under AIA?
Yes, secret commercial activity can be considered “on sale” under AIA 35 U.S.C. 102(a)(1). The MPEP references the Supreme Court decision in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., stating:
“[T]he Supreme Court ‘determine[d] that Congress did not alter the meaning of ‘on sale’ when it enacted the AIA, [and held] that an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential can qualify as prior art under [AIA 35 U.S.C.] § 102(a).'”
This means that even confidential sales or offers for sale can potentially be considered prior art, regardless of whether they disclose the invention to the public.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2152.02(D) - On Sale,
Patent Law,
Patent Procedure