You are here:  Ed9 10.2019 Guidebook  » Appendix II: 35 U.S.C. 102

2133.03   Rejections Based on “Public Use” or “On Sale”

  This MPEP section has limited applicability to applications subject to examination under the first inventor to file (FITF) provisions of the AIA.

MPEP SECTION SUMMARY

This section provides an overview of rejections based on 'public use' or 'on sale' focusing primarily on pre-AIA 35 U.S.C. 102(b). Pre-AIA 35 U.S.C. 102(b) “contains several distinct bars to patentability, each of which relates to activity or disclosure more than one year prior to the date of the application. Two of these - the ‘public use’ and the ‘on sale’ objections - are sometimes considered together although it is quite clear that either may apply when the other does not.” This section provides further details as well as policy considerations.

  Section Frequency Chart

Key
2
4
6
8
10
2133.03
   

There may be a public use of an invention absent any sales activity.

  • Likewise, there may be a nonpublic, e.g., “secret,” sale or offer to sell an invention which nevertheless constitutes a statutory bar.

In similar fashion, not all “public use” and “on sale” activities will necessarily occasion the identical result.

  • Although both activities affect how an inventor may use an invention prior to the filing of a patent application, “non-commercial” pre-AIA 35 U.S.C. 102(b) activity may not be viewed the same as similar “commercial” activity.
  • Likewise, “public use” activity by an applicant may not be considered in the same light as similar “public use” activity by one other than  an applicant.
    • Additionally, the concept of “experimental use” may have different significance in “commercial” and “non-commercial” environments.

It should be noted that pre-AIA 35 U.S.C. 102(b) may create a bar to patentability either alone, if the device in public use or placed on sale anticipates a later claimed invention, or in conjunction with 35 U.S.C. 103, if the claimed invention would have been obvious from the device in conjunction with the prior art.


I.    POLICY CONSIDERATIONS

  • “One policy underlying the [on-sale] bar is to obtain widespread disclosure of new inventions to the public via patents as soon as possible.”
  • Another policy underlying the public use and on-sale bars is to prevent the inventor from commercially exploiting the exclusivity of his [or her] invention substantially beyond the statutorily authorized period..
  • Another underlying policy for the public use and on-sale bars is to discourage “the removal of inventions from the public domain which the public justifiably comes to believe are freely available.”

 

» 2133.03(a) “Public Use”