How does the AIA affect the interpretation of the on-sale bar?
The America Invents Act (AIA) maintained the “on sale” language from the pre-AIA statute, and the courts have interpreted it as having the same meaning. The MPEP states:
It is noted that AIA 35 U.S.C. 102(a)(1) uses the same “on sale” term as pre-AIA 35 U.S.C. 102(b) and is treated as having the same meaning.
(MPEP 2133.03(b))
This interpretation was confirmed by the Supreme Court in the case Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc. The Court held that the AIA did not change the meaning of “on sale” for purposes of determining whether an inventor’s sale of an invention to a third party qualifies as prior art.
However, it’s important to note that the AIA did change the timing of when the on-sale bar applies. Under the AIA, the critical date is the effective filing date of the claimed invention, rather than the actual filing date of the patent application as in the pre-AIA system.
To learn more: