What 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 MoreWhat constitutes a “commercial offer for sale” under the on-sale bar?
A commercial offer for sale, in the context of the on-sale bar, must be an offer that the other party could make into a binding contract by simple acceptance. The MPEP states: “Only an offer which rises to the level of a commercial offer for sale, one which the other party could make into a…
Read MoreWhat constitutes a “commercial offer for sale” in patent law?
A “commercial offer for sale” in patent law is determined by applying the law of contracts as generally understood. According to MPEP 2152.02(d), “[a] sale is a contract between parties to give and to pass rights of property for consideration which the buyer pays or promises to pay the seller for the thing bought or…
Read MoreWhat are the key indicators of commercial exploitation in patent law?
The MPEP outlines several activities that patent examiners should consider as indicators of commercial exploitation. These include: Preparation of commercial documents (e.g., orders, invoices, receipts) Creation and distribution of price lists and quotations Display of samples to potential customers Demonstration of models or prototypes, especially at trade conventions Use of an invention where an admission…
Read MoreWhat factors indicate commercial exploitation in patent law?
The MPEP outlines several factors that can indicate commercial exploitation, which may negate the experimental use exception. These include: Preparation of commercial documents (orders, invoices, receipts) Preparation and distribution of price lists and quotations Display of samples to potential customers Demonstration of models or prototypes, especially at trade conventions Charging admission fees for use of…
Read MoreWhat types of arguments are not considered in a reexamination request?
In a reexamination request, only arguments based on prior art patents or printed publications are considered. The MPEP specifically states: “If arguments are presented as to grounds not based on prior art patents or printed publications, such as those based on public use or on sale under 35 U.S.C. 102(b), or abandonment under 35 U.S.C.…
Read MoreWhat is the difference between AIA and pre-AIA patent law regarding “in this country”?
The concept of “in this country” differs significantly between the America Invents Act (AIA) and pre-AIA patent law: Pre-AIA: The “in this country” requirement was explicitly stated in 35 U.S.C. 102(b), limiting the public use and on-sale bars to activities within the United States and its territories. AIA: The AIA removed the “in this country”…
Read MoreHow does the AIA affect the interpretation of public use and on-sale bar?
The America Invents Act (AIA) has introduced changes to the interpretation of public use and on-sale bar. The MPEP 2133.03(e)(2) notes: “This MPEP section may be applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note).” For a detailed discussion…
Read MoreHow does the AIA affect the on-sale bar in patent law?
The America Invents Act (AIA) made significant changes to the on-sale bar in patent law. According to MPEP 2152.02(d): “The pre-AIA on sale bar is not limited to sales or offers for sale that make the invention available to the public… [Under AIA] the sale must make the invention available to the public.” Key changes…
Read MoreHow 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.…
Read More