Contrary to USPTO guidance, invention details need not be publicly disclosed to trigger on-sale bar for AIA patents.

The Leahy-Smith America Invents Act (AIA)1 is widely considered the most significant overhaul of US patent law since the Patent Act of 1952. Although the AIA became effective in 2013, the Federal Circuit has only recently had the opportunity to interpret the AIA’s new or amended provisions because of the time required for AIA patents to be issued, litigated and come up on appeal. The US Patent and Trademark Office (USPTO), however, has processed hundreds of thousands of patent applications under new AIA provisions every year since the AIA became effective without the benefit of guidance from the Federal Circuit on what some of those provisions mean. One such provision is the on-sale bar under 35 U.S.C. Section 102, which prohibits patenting an invention that was on sale prior to seeking patent protection.