Also known as: public use · on sale · public-use bar · on-sale bar · 35 U.S.C. § 102(b) · public use bar
Written by attorneys · grounded in primary & secondary sources — see below
A statutory bar to patentability. An invention that has been in public use or offered for sale in the United States more than one year before the filing date of the patent application cannot receive a patent.
Pilar Pena owns waterfront land that the city condemns to build a public park. The city argues the taking serves a public use because the park will be open to all residents. Pilar claims the taking violates the Fifth Amendment because the park primarily benefits private developers. The court must decide whether the planned park qualifies as a public use under the constitutional standard.
Peak Performance develops a new engine component and sells several units to a single customer under a confidentiality agreement more than one year before filing a patent application. A competitor later challenges the patent on the ground that the sales triggered the statutory bar. The court examines whether the confidential sales constituted an on-sale event that invalidates the patent.
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Priya Prasad publicly demonstrates her new agricultural tool at a county fair more than thirteen months before filing her patent application. A rival company argues the demonstration placed the invention in public use and bars patentability. The court determines whether the fair demonstration meets the public-use threshold under the statute.
Pablo Perez offers his prototype boat hull design for sale to a marina operator more than one year before filing. He claims the transaction was experimental and therefore exempt from the on-sale bar. The court evaluates whether the sale was primarily for testing or instead triggered the statutory bar.
Peter Park sues his former patent attorney in state court for mishandling a patent application that was rejected under the on-sale bar. The attorney removes the case to federal court, arguing the claim arises under patent law. The court decides whether the state malpractice action belongs in federal court because it requires resolution of the public-use or on-sale issue.
The bar is triggered when the invention is either in public use or offered for sale in the United States more than one year before the patent application filing date. Any such activity starts the one-year clock and prevents patentability if the application is filed after the period expires.
Yes. A sale or offer for sale, even if made under confidentiality, can trigger the bar if it occurs more than one year before filing. The statute focuses on commercial activity rather than public disclosure.
Experimental use may avoid the bar when the primary purpose of the activity is testing rather than commercial exploitation. Courts examine the objective intent behind the use or sale to determine whether it qualifies for the exception.
Removal depends on whether the claim necessarily raises a substantial and disputed federal patent issue that is capable of resolution in federal court without disrupting the federal-state balance. Not every patent-related malpractice claim meets this standard.
…for patent, or “(b) 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 the application for patent in the United States, or “(c) he has abandoned the invention, or “(d) the invention was first patented…