In a panel decision the US Court of Appeals for the Federal Circuit (CAFC) had its first opportunity to interpret the “or otherwise available to the public” clause included in 35 U.S.C. § 102 as revised under the AIA. Particularly, in this case, although the patentee entered into a publicly disclosed purchase agreement that covered the claimed invention, the details of the invention were not publicly disclosed by the agreement.

On appeal, the CAFC addressed the question of whether post-AIA § 102, which includes the “or otherwise available to the public” clause, requires the details of the invention to be publicly disclosed to trigger the on-sale bar. First, the CAFC asserted that while several congressional floor statements were made during the passage of the AIA that evinced an intent to do away with the triggering of the on-sale bar in the case of “secret sales,” in this case the purchase agreement was publicly disclosed. The CAFC then held that for post-AIA patents, if the existence of the sale is public, the details of the invention need not be publicly disclosed in the term of sale to trigger the on-sale bar.

The patentee has now filed a petition seeking en banc review of the panel’s decision.