One would not be surprised to read from 35 USC 102(a)(1) that novelty is not satisfied when:

the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention

However, pre-AIA 35 U.S.C. 102(b) only disallowed that:

the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.

Why was it that in the past, it was allowable to patent something in the US which was publicly used/sold in another country? I encountered an (old) MPEP exam question that made this distinction.

  • 1
    Part of the question revolves around whether the inventors themselves caused the public use or sale in another country, or whether there was any possible way the inventors or examiners could know about anyone else's public use or sale. The USPTO has the burden of proving an application doesn't qualify for a US patent and may certainly inquire whether an applicant was aware of use/sale by others. – Upnorth Aug 12 '17 at 23:35
  • @Upnorth I see. So it sounds like the old statute is less about allowing for foreign sales, and more about only citing prior art that is accessible/can be proven (e.g. if there was a flyer/advertisement in another country, that could be considered a printed publication instead). – user132162 Aug 13 '17 at 14:21

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