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)).…

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