On Wednesday August 14th, a divided  Fed. Cir. panel affirmed the invalidation of Hamilton Beach’s portable slow cooker under the “on-sale” or “in public use” bars of s. 102(b). Hamilton Beach Brands v. Sunbeam Prods., Inc., Appeal No. 2012-1581 (Fed. Cir. Aug. 14, 2013). (A copy of the decision is available at the end of this post.) Hamilton Beach had ordered 2000 of the cookers from an overseas’ supplier prior to the critical date (one year prior to the effective filing date of the application that claimed the purchased version of the cooker). The majority found that the offer to sell made by the supplier activated the on-sale bar of 102(b), and that the hoary “experimental use” exception does not apply since the cookers were ready for patenting. The dissenting member of the panel felt that the experimental use exception should apply since the sale did not meet the standards for a “commercial sale.”

Interesting, as noted by at least one commentator, under AIA’s 102(b) exception to the on-sale bar of 102(a)(1), if the disclosure (the sale) had been made within a year of filing, the exception would apply, since the seller obtained the subject matter directly from the inventors, via Sunbeam.  However, the purchase would still be a bar if it fell outside the grace period.

I know that this is not anything like a big change in biotech/pharma patent law, but it is a very good review of the on sale bar and the experimental use exception to the bar.

12-1581.Opinion.8-12-2013.1.PDF0_C