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 MoreWhat is the significance of the statutory bar under pre-AIA 35 U.S.C. 102(b)?
The statutory bar under pre-AIA 35 U.S.C. 102(b) is a critical concept in patent law that can prevent an inventor from obtaining a patent. According to MPEP 2133.02: “A rejection under pre-AIA 35 U.S.C. 102(b) cannot be overcome by affidavits and declarations under 37 CFR 1.131 (Rule 131 Declarations), foreign priority dates, or evidence that…
Read MoreCan an inventor’s secret intent to experiment prevent a statutory bar?
No, an inventor’s secret intent to experiment is not sufficient to prevent a statutory bar. The MPEP 2133.03(e)(2) cites the case of Paragon Podiatry Laboratory, Inc. v. KLM Labs., Inc., stating: “Evidence of the inventor’s secretly held belief that the units were not durable and may not be satisfactory for consumers was not sufficient, alone,…
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 is Pre-AIA 35 U.S.C. 102(d) and when does it apply?
Pre-AIA 35 U.S.C. 102(d) is a provision of patent law that establishes statutory bars against granting a patent in the United States under certain conditions related to foreign patents or inventor’s certificates. It’s important to note that this provision is not applicable to applications subject to examination under the first inventor to file (FITF) provisions…
Read MoreWhat is the significance of pre-AIA 35 U.S.C. 102(b) in determining prior art?
Pre-AIA 35 U.S.C. 102(b) is significant because it creates a statutory bar to obtaining a patent. According to the MPEP, If the publication or issue date of the reference is more than 1 year prior to the effective filing date of the claimed invention (MPEP § 2139.01), the reference qualifies as prior art under pre-AIA…
Read MoreWhat is the “on sale” bar in patent law and how does experimental use affect it?
The “on sale” bar in patent law is a provision that can prevent an inventor from obtaining a patent if their invention was on sale more than one year before the filing date of the patent application. However, experimental use can provide an exception to this bar. According to MPEP 2133.03(e): “If the use or…
Read MoreCan an inventor’s own work be used as prior art against their patent application?
Yes, an inventor’s own work can be used as prior art against their patent application under certain circumstances. According to MPEP 2133.02: “Any invention described in a printed publication more than one year prior to the date of a patent application is prior art under Section 102(b), even if the printed publication was authored by…
Read MoreWhat is the significance of the In re Elsner case for plant patents?
The In re Elsner case, as discussed in MPEP 2121.03, is significant for plant patents as it establishes criteria for when a combination of facts and events can constitute a statutory bar under pre-AIA 35 U.S.C. 102(b). The MPEP states: “The court held that when (i) a publication identifies claimed the plant, (ii) a foreign…
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