(Originally published by PatentlyO on October 31, 2025.)

In our 2024 Stanford Law Review article, “Real-World Prior Art,” we argued that the doctrines surrounding the public-use and on-sale bars—categories of prior art that we collectively called “real-world” prior art—were in some respects confused and misaligned. One of our arguments was that private sales—sales in which the invention has not been put into public use or led to the creation of some other type of prior art—should not provide the seller with a safe harbor against prior art under post-AIA 35 U.S.C. § 102(b)(1)(B), because a private sale by itself does not “publicly disclose” the invention per the terms of the statute.

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