Chemical Engineering April 2019 - 54

disclosures of the claimed invention
because there was no confidential
relationship between the inventor
and the engineer or the company.
A demonstration or communication
need not involve the inventor
to present a possible problem for
U.S. patent rights. For example, in
1994, the Federal Circuit considered
whether a conversation involving the
inventor's graduate advisor could be
used to invalidate U.S. patent claims
owned by National Research Development
Corporation (NRDC) [12].
The graduate advisor had attended
an Experimental Nuclear Magnetic
Resonance (NMR) Conference in the
United States in 1973. On the bus
to the conference, he had an informal
and non-confidential conversation
with a scientist from Monsanto
Company about the inventor's work
on NMR. Monsanto subsequently
incorporated the invention into an
NMR spectrometer it used for analyzing
herbicides. About two years
later, the inventor filed a U.S. patent
application. A patent issued,
and NRDC subsequently sued Varian
Associates, Inc. in the District of
New Jersey for infringement. During
the litigation, Varian argued that the
patent claims were invalid based on
the 1973 disclosure by the graduate
advisor and Monsanto's subsequent
use. The district court agreed, and
on appeal, the Federal Circuit affirmed.
The Federal Circuit reasoned
that the graduate advisor's unrestricted
disclosure of the claimed
invention more than one year before
patent filing, coupled with the use
of that information in the ordinary
course of Monsanto's business, invalidated
the patent claims.
Learning from these cautionary
tales, scientists should ensure that
any demonstrations of their inventions
and communications about
their inventions are kept confidential
(Figure 3). In addition, out of an abundance
of caution, inventors should
consider filing a U.S. patent application
within one year of demonstrating
or communicating about their invention,
or before demonstrating or
communicating about their invention
at all if they are considering global
patent protection.
Sales and offers to sell
Sales of a claimed invention and offers
to sell a claimed invention more
than one year before patent filing
may present a possible problem for
U.S. patent rights. For example, in
2016, the Federal Circuit considered
whether Ben Venue Laboratories'
supply of batches of an anticoagulant
product could be used to invalidate
patent claims owned by the Medicines
Company (MedCo) relating to a
process for making the product [13].
More than one year after MedCo
contracted with Ben Venue to manufacture
three batches of MedCo's
anticoagulant product, MedCo filed
a U.S. patent application. A patent
issued, and MedCo subsequently
sued Hospira Inc. in the District of
Delaware for infringement.
During
the litigation, Hospira argued that the
patent claims were invalid based on
Ben Venue's sale of the product to
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Chemical Engineering April 2019

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