Navigating Bar To Patentability In 3rd-Party Secret Sales

By Daniel Tishman and Brian Livedalen (September 21, 2021, 4:55 PM EDT) -- The U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit have long held that private or secret sales implicate the on-sale bar to patentability, but practitioners, and even some courts, have gotten tripped up over an exception that is limited to sales of unpatented products made by patented methods of manufacture.

While a patentee's sale of a product made by a patented method bars patentability even if the patented method is kept secret, this is not the case for a third-party sale of a product made by a patented method. Such a third-party sale is governed by...

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