Also known as: statutory bar · statutory bar to patentability
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A statutory prohibition on registering marks that express disfavored viewpoints. The prohibition constitutes an unconstitutional viewpoint-based restriction on private speech that fails strict scrutiny.
A statutory prohibition on registering marks that express disfavored viewpoints. The prohibition constitutes an unconstitutional viewpoint-based restriction on private speech that fails strict scrutiny.
Select any source to read its text and confirm it supports the definition.
A rule under the first-to-invent version of 35 U.S.C. § 102 that bars patentability when the invention was in public use, on sale, or described in a printed publication more than one year before the filing date.
Select any source to read its text and confirm it supports the definition.
A rule under the first-to-invent version of 35 U.S.C. § 102 that bars patentability when the invention was in public use, on sale, or described in a printed publication more than one year before the filing date.
Each sense below has its own examples, sources, and questions.
East Cargo LLC files a trademark application for a fleet-management app name containing a term derogatory toward older drivers. The examiner rejects the application solely because the mark disparages veteran drivers. East Cargo sues, claiming the rejection violates the First Amendment. The court holds that the statutory bar on disparaging marks is an unconstitutional viewpoint restriction on private speech.
A statutory bar on registering disparaging trademarks is an unconstitutional viewpoint-based restriction on private speech. Trademarks are private speech, not government speech. The government may not use the registration system to suppress speech based on disapproval of the speaker's viewpoint.
Supporting sources
Helsinn Healthcare enters a supply agreement for a drug product more than one year before filing its patent application. The buyer must still obtain FDA approval before commercial sale. Helsinn later sues Teva for infringement. The court applies the on-sale bar and holds the patent invalid because the agreement constituted a commercial offer for sale before the critical date.
The statutory bars of § 102(b) preclude patentability when publications, public uses, or sales occur more than one year before the filing date. During the one-year grace period the inventor may assess the merits of filing or prepare the application.
Supporting sources
Absence of FDA or other regulatory approval before the critical date does not prevent a sale or offer for sale from triggering the on-sale bar. The claimed invention remains a tangible item that can be sold or offered even if further approvals are required.
Supporting sources