What is the “on sale” bar under pre-AIA 35 U.S.C. 102(b)?
The “on sale” bar under pre-AIA 35 U.S.C. 102(b) prevents an inventor from obtaining a patent if the invention was on sale in the United States more than one year prior to the date of the application for patent. The Supreme Court in Pfaff v. Wells Electronics, Inc. established a two-part test for determining if…
Read MoreWhat constitutes a “public use” under pre-AIA 35 U.S.C. 102(b)?
A “public use” under pre-AIA 35 U.S.C. 102(b) occurs when the invention is in public use before the critical date and is ready for patenting. The Federal Circuit has explained that the proper test for the public use prong includes two key elements: The purported use was accessible to the public; or The invention was…
Read MoreHow does secret commercial use affect patentability?
Secret commercial use of an invention can significantly impact patentability. According to MPEP 2133.03(a): “Secret use is use by the inventor or by persons under the inventor’s control that is not visible to the public. Secret use may be commercial use or non-commercial use.” Key points about secret commercial use: It can trigger the one-year…
Read MoreWhat does “ready for patenting” mean in the context of the on sale bar?
The phrase “ready for patenting” is a key component of the two-part test established by the Supreme Court in Pfaff v. Wells Electronics, Inc. for determining whether an invention is “on sale” under pre-AIA 35 U.S.C. 102(b). An invention is considered “ready for patenting” when it is either: Reduced to practice; or Depicted in drawings…
Read MoreHow does experimental use affect the public use bar in patent law?
Experimental use is an important exception to the public use bar in patent law. According to MPEP 2133.03(e): “The use of an invention by the inventor himself, or of any other person under his direction, by way of experiment, and in order to bring the invention to perfection, has never been regarded as [a public]…
Read MoreWhat is the experimental use exception to the public use and on sale bars?
The experimental use exception is a legal doctrine that can negate what would otherwise be considered a public use or sale under pre-AIA 35 U.S.C. 102(b). This exception allows inventors to test and perfect their inventions without triggering the statutory bars. As stated in MPEP 2133.03(e): “The question posed by the experimental use doctrine is…
Read MoreWhat is the “critical date” in relation to the public use and on-sale bars?
The “critical date” is a crucial concept in patent law, particularly in relation to the public use and on-sale bars. According to MPEP 2133: “The 1-year grace period in 35 U.S.C. 102(b) starts with the earliest of date of public use, sale, or publication.” Key points about the critical date: It is exactly one year…
Read MoreHow does commercial exploitation affect the public use and on sale bars?
Commercial exploitation is a significant factor in determining whether an invention has been in public use or on sale under pre-AIA 35 U.S.C. 102(b). Even if an inventor claims experimental use, evidence of commercial exploitation can negate this defense and trigger the statutory bars. As stated in MPEP 2133.03(e)(1): “As the degree of commercial exploitation…
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