Yes, A Secret Process Can (Still) Create An On-Sale Bar

In re Certain High-Potency Sweeteners was initiated by Celanese International Corporation ("Celanese") against more than 20 respondents, including Anhui Jinhe Industrial Co., Ltd. and Jinhe USA LLC (collectively "Jinhe"). The patents asserted in the investigation claim improvements to a conventional process for making acesulfame potassium (Ace-K) - an artificial sweetener used in foods, drinks, and medicines. During prosecution of the asserted patents, Celanese admitted that the claimed process had been in use, in secret, in Europe and that products made from the claimed process were sold in the United States more than one year before the priority date. Citing Celanese's admission, Jinhe filed a motion for summary determination of no violation based on the contention that all patent claims asserted in the investigation were invalid because Celanese sold products made with the patented process more than a year before the effective filing date of the patents, thus