The America Invents Act ("AIA") bars a person from obtaining a patent when the "claimed invention" had been "on sale" more than one year before the filing date of the patent. 35 U.S.C. ' 102(a)(1).
Acesulfame potassium ("Ace-K") is an artificial sweetener used in foods, drinks, and medicines. In 2015, Celanese International Corporation ("Celanese") filed a patent claiming an improved method of preparing Ace-K. However, Celanese had secretly made Ace-K by 2011 using the claimed process and sold that Ace-K more than one year before filing its patent application. Based on these facts, the ITC issued a summary determination that the asserted patent claims were invalid pursuant to the AIA's on-sale bar provision.
Next week, the Federal Circuit in Celanese International Corporation v. I.T.C., No. 22-1827, will hear Celanese's appeal. Celanese asserts that a plain reading of the statute requires that the "claimed invention" (i.e., the process) must have been on sale. It also asserts that textual differences between the on-sale bar provisions of pre-AIA 35 U.S.C. ' 102(b) and AIA 35...
