Prior Art That Is an Absolute Bar

Sections 102(b), 102(c), and 102(d) represent absolute bars to a patent applicant s invention in the sense that references cited under any one of these sections cannot be 

A key element of 102(a) prior art is that it relates to the date of the invention by the applicant. For a 102(a) reference date to effectively block the applicant s work, the 102(a) event must have occurred before the date of the invention by the applicant. Flowever, the provisions of 102(b) provide an important limit to the first-to-invent rule. The section of prior art defined in 102(b) is referred to as the absolute bar because it limits how far one can go in antedating a prior art reference to prove earlier invention in the United States. Specifically, a patent for an invention cannot be obtained in the United States if the invention was patented or described in a printed publication (or in public use or on sale in this country), more than 1 year before the date of application for patent in the United States. Thus, even if the applicant made the invention before the 102(b) event, she will be barred from being granted a patent if she does not file the patent application within 1 year of that 102(b) event. Note that 102(b) does not contain the phrase by others as in 102(a). Thus if an applicant publishes her own invention more than 1 year before filing the application for patent, she will be barred by 102(b) from being eligible to be granted a patent in the United States. Likewise, if a 102(b) event by another occurs, apatent applicant in the United States will not be able to antedate the 102(b) event. 

An important aspect of public use of an invention is that it does not require that the invention be in open display to be in public use the only requirement is that the invention is being used in its natural and intended way. 28 As a result, the sale or public use of a chemical mixture such as a paint, coating, or medicine would likely still be a public use even though the components in the mixture are not readily discernable to the public. In a similar vein, sale of a good made by a certain process is a public sale of the process and will toll the 102(b) time clock even though the process used to make the good could not be discerned from the good itself.29 

The three primary points of concern with the on sale aspect of 102(b) are whether a sale or offer for sale has actually occurred, whether the invention was ready for patenting, and whether the sale was primarily commercial or experimental.31 Whether a sale or offer for sale has actually occurred can be determined by contract law. 

In reference to the second point, an item can be ready for patenting if it has already been actually reduced to practice. However, an actual reduction to practice is not necessary if the invention being sold is capable of being reduced to practice without extraordinary effort or skill—for example, if the inventor has prepared descriptions or drawings of such specificity to enable one of ordinary skill to practice the invention.36 

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