2133.03(d) "In This Country" [R-10.2019]
[Editor Note: This MPEP section is not applicable to applications subject to examination under the first inventor to file (FITF) provisions of the AIA as set forth in 35 U.S.C. 100 (note). See MPEP § 2159 et seq. to determine whether an application is subject to examination under the FITF provisions, and MPEP § 2150 et seq. for examination of applications subject to those provisions. See MPEP § 2152.02(c) through (e) for a detailed discussion of the public use and on sale provisions of AIA 35 U.S.C. 102.]
The language "in this country" in pre-AIA 35 U.S.C. 102(b) does not include other WTO or NAFTA member countries, but includes any State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States. See also 35 U.S.C. 105. For purposes of judging the applicability of the pre-AIA 35 U.S.C. 102(b) bars, public use or on sale activity must take place in the United States. The "on sale" bar does not generally apply where both manufacture and delivery occur in a foreign country. Gandy v. Main Belting Co., 143 U.S. 587, 593 (1892). However, "on sale" status can be found if substantial activity prefatory to a "sale" occurs in the United States. Robbins Co. v. Lawrence Mfg. Co., 482 F.2d 426, 433, 178 USPQ 577, 583 (9th Cir. 1973). An offer for sale, made or originating in this country, may be sufficient prefatory activity to bring the offer within the terms of the statute, even though sale and delivery take place in a foreign country. The same rationale applies to an offer by a foreign manufacturer which is communicated to a prospective purchaser in the United States prior to the critical date. CTS Corp. v. Piher Int’l Corp., 593 F.2d 777, 201 USPQ 649 (7th Cir. 1979).