The Federal Circuit granted en banc review of the scope of on-sale bar under 35 USC 102(b). Medicines Co. v. Hospira, Inc., No. 2014-1469. In this case, laboratory services were provided to the patent owner to reduce impurities in material covered by product-by-process claims. The Federal Circuit panel held that on-sale bar may apply where only services are provided and title does not change hands. The en banc court has presented the following questions: (a) do the circumstances presented here constitute a commercial sale under the on-sale bar of 35 USC 102(b)? (i) was there a sale for the purposes of 102(b) despite the absence of a transfer of title? (ii) was the sale commercial in nature for the purposes of 102(b) or an experimental use? (b) should this court overrule or revise the principle in Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353 (Fed. Cir. 2001), that there is no "supplier exception" to the on-sale bar of 35 USC 102(b)?
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