C 102b invention was patented or described in printed

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c)§ 102(b)– Invention was patented or described in printed publication anywhereor in public use of on sale in the US more than 1y prior to applicationi)NOTE – Patent and printed publication is the same as § 102(a) but patent/publication by inventor counts against inventors patent!!ii)Public Use(1) Generally– Any use of the invention by an applicant in a public setting as well asany use by a person other than applicant with no limitation, restriction, or obligation of secrecy to inventor(a)Informing Use– Reveals invention, disclosure puts public in possession(b) Non-Informing Use– Does not reveal the nature of the invention(c)Secret Use– Non-informing use where inventor/possessor intends trade secret(2)Public Use by Applicant(a)Informing useby inventor creates a bar to patent(b) Non-Informing useby inventor creates a bar to patent (Egbert)(i)Single use may be public even if invisible1.No more concealment than is inseparable from any legitimate use (Hall v. MacNeale– Burglar safe w/ hidden advanced features)(ii) Single person may be informed so long as not under duty of secrecy(iii)See Moleculon– Maintain control, personal relationships/circumstances imply confidentiality(c)Secret useby inventor is “public” under § 102(b) even if only non-informing finished products are sold produced by secret process (Metallizing)(i)Non-Informing public use of high-level aspects of software are public (Lockwood v. AA– SABRE reservation system)(3) Public Use by Third Parties(a)Informing useby 3rdparty creates a bar to patent – anti-backsliding(b) Non-Informing useby 3rdparty can create a bar to patent(i)Bar even if use is unknown @ time and discovered later (Abbot v. Geneva)(c)Secret useby 3rdparty will not bar a patent (Gore v. Garlock adopting Metallizing)(i)Critical – Product cannot be reverse engineered (See Dunlop) sale is non-informing(ii)But see Baxter v. Cobe– Use at NIH sufficiently public to bar1.Experimental Work ≠ Experimental Use2.Experimental use by 3rdparty can still anticipate patentee3.Dissent (Newman)– Punish concealing inventor but not secret 3rdpartyuse(4) Note– Secret use with no public exploitation will not anticipate (Bates v. Coe)(a)Even stolen 3rdparty use is anticipating (Lorenz– 3rdCircuit)25NOTE:For foreign prior art, must ask whether the document/article is actually a written publication!
iii)On Sale(1)Analysis(Pfaff)(a)The product is the subject of a commercial offer for sale(i)Sufficiently firm and definite to permit immediate acceptance to form a K(b) Invention is ready for patenting(i)By proof of reduction to practice before the critical date(ii) Or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable PHOSITA to practice the invention(iii)Must have some form of operability1.But inventor need not recognize what she has (Abbot)(c)Corporate entities(i)Divisions of a corporation are not separate entities for on sale (Caveney)

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