Third-Party Statutory Bar Activity
1.    Baxter: Blood centrifuge. Baxter sues COBE for infringement, COBE seeks SJ because 3rd party publicly used the invention more than one year prior, raising § 102(b) bar.
a.    Main issue, was use in lab experimental, even though the inventor wasn’t experimenting, but rather someone else?
b.    Court finds use in lab public—no guards or security. No confidentiality requirements.
2.    If A sells product of secret invention, this does not preclude B’s right to patent the device.
Gore
a.    Cropper (in NZ) develops and constructs machine for producing tape. Offers to sell to Mass. company, nothing happens. Sells to Budd under agreement that he must keep the machine a secret. Employees signed confidentiality agreements. No attempt to hide the machine though. Sells the tape made by the machine.
b.    Public use
(A)    Dr. Gore invents same machine, wants to patent. Court finds that Gore can patent because Budd only sold the tape, not the process that was used in producing it. Because activity was secret, there was no public use.
(B)    Policy-based distinction btw inventor’s sale and 3rd party’s sale: Cropper’s sale of tape created a § 102(b) bar for Cropper only. Idea is that 102(b) is primarily concerned with policy—encouraging an inventor to enter the patent system promptly.
c.    Cropper’s offer for sale: Was invention on sale in US by NZ citizen offering to sell machine to Mass company?