How does the AIA’s “on sale” provision differ from pre-AIA law?

While the AIA’s “on sale” provision is largely interpreted similarly to pre-AIA law, there are some key differences. The MPEP highlights two main distinctions:

1. Geographic limitations: “Under AIA 35 U.S.C. 102(a)(1), there is no geographic limitation on where the sale or offer for sale may occur.” This contrasts with pre-AIA law, which limited “on sale” activities to those occurring “in this country.”
2. Exceptions: “[C]ertain uses or sales are subject to the exceptions in 35 U.S.C. 102(b)(1), e.g., uses or sales by the inventor or a joint inventor (or have originated with the inventor) that precede the effective filing date by less than one year.”

These differences can significantly impact how “on sale” activities are evaluated in patent applications under AIA compared to pre-AIA law.

To learn more:

• AIA
• pre-AIA
• on sale
• 35 U.S.C. 102(a)(1)
• 35 U.S.C. 102(b)(1)
• geographic limitations