A secret (i.e., non-public) sale or sale that does not disclose the invention is still prior art under 35 U.S.C. § 102(a)(1). A nondisclosure agreement does not provide safe harbor against the on-sale bar.
Results for On-sale bar
Federal Circuit finds that a ‘supply contract’ for manufacturing services between a manufacturer and an inventor, more than one year before filing a patent application, does not trigger the on-sale bar of 35 U.S.C. § 102(b) (pre-AIA) as it is not a “commercial sale” under the Uniform Commercial Code.
The Federal Circuit held a patent invalid under the 35 U.S.C. § 102(b) on-sale bar test of Pfaff because (1) the invention was ready for patenting, based on a declaration by the inventor that the invention was “reduced to practice,” and (2) the invention was the subject of a commercial sale, based on the fact that testers were invoiced for calls made during beta testing, prior to the critical date.
The Federal Circuit holds that rewriting a dependent claim into independent form, coupled with the cancelation of its original independent claim, gives rise to prosecution history estoppel.
Electromotive Division of General Motors Corp. v. Transportation Systems Division of General Electric Co.
Factors to be considered in determining the existence of experimentation include customer awareness.