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

2133.03(d)   “In This Country”

 This MPEP section is not applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA.

MPEP SECTION SUMMARY

This section covers the phrase 'in this country' in relation to pre-AIA 35 U.S.C. 102(b). For purposes of pre-AIA 35 U.S.C. 102(b) public use or on sale activity must take place in the United States.

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2133.03(d)
   

The language "in this country" in pre-AIA 35 U.S.C. 102(b) does not include other WTO or NAFTA member countries, but includes any State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

For purposes of judging the applicability of the pre-AIA 35 U.S.C. 102(b) bars, public use or on sale activity must take place in the United States.

  • The “on sale” bar does not generally apply where both manufacture and delivery occur in a foreign country.
  • However, “on sale” status can be found if substantial activity prefatory to a “sale” occurs in the United States.

An offer for sale, made or originating in this country, may be sufficient prefatory activity to bring the offer within the terms of the statute, even though sale and delivery take place in a foreign country.

  • The same rationale applies to an offer by a foreign manufacturer which is communicated to a prospective purchaser in the United States prior to the critical date.

 

» 2133.03(e) Permitted Activity; Experimental Use