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Wwolfeld
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Does a preclusive disclosure remove a subsequent third party on-sale from the prior art? Hal Wegner has argued that a preclusive disclosure probably has to be a publication, and that an on-sale should not act as a preclusive disclosure. (http://www.foley.com/files/tbl_s31Publications/FileUpload137/8549/PatentLaw2011ThirdEditionSept29.pdf, sec.210+). But assuming A publishes an invention, is B's subsequent independent on-sale of the same invention removed from the prior art to A's later patent application? A sensible goal of the preclusive disclosure sections would be that once an inventor publishes, he/she can wait a year to file a patent application without worrying about any prior art arising in between. But it seems to me this would require a slightly tortured reading of the new statute. The Act says that "A DISCLOSURE ... shall not be prior art under subsection (a)(1) if (A) the disclosure was made by the inventor...; or (B) the SUBJECT MATTER DISCLOSED had, before such disclosure, been PUBLICLY DISCLOSED by the inventor...." So in order to interpret this such that an on-sale can't be a preclusive disclosure, yet an on-sale is a type of prior art that can be precluded, we would have to interpret "disclosure" as including on-sale activity, but "subject matter ... publicly disclosed" as not including on-sale activity. Does anyone have any thoughts about how the statutory language can be interpreted to reach a conclusion that an on-sale can't be a preclusive disclosure, yet an on-sale is a type of prior art that can be precluded from the prior art? Or does anyone think that's the wrong interpretation?
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Sep 30, 2011