How does the AIA treat “on sale” activities as prior art?
The AIA’s treatment of “on sale” activities as prior art under 35 U.S.C. 102(a)(1) is similar to pre-AIA law, but with some important changes. The MPEP provides guidance on this topic:
“The phrase ‘on sale’ in AIA 35 U.S.C. 102(a)(1) is treated as having the same meaning as ‘on sale’ in pre-AIA 35 U.S.C. 102(b).”
Key aspects of “on sale” activities under the AIA include:
- No geographic limitation – sales or offers for sale anywhere in the world can be prior art
- Must occur before the effective filing date of the claimed invention
- Can be by the inventor, joint inventor, or others
- Secret sales or offers for sale can qualify as prior art (as confirmed in the Helsinn case)
- Commercial law principles apply in determining if a sale or offer for sale occurred
The MPEP also notes:
“When formulating a rejection, Office personnel should consider evidence of sales activity, regardless of where the sale activity took place.”
However, certain sales may be subject to exceptions under 35 U.S.C. 102(b)(1), such as sales by the inventor or someone who obtained the subject matter from the inventor, if they occurred within one year of the effective filing date.
To learn more: