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On January 10, 2025, the NAM filed an amicus brief requesting the U.S. Supreme Court to address an issue of first impression under U.S. patent law, as amended by the Leahy-Smith America Invents Act of 2011 (AIA)—whether a company’s sale of an unpatented product made by a secrete patent process is a bar to patentability of that process under the AIA. In this case, Celanese sought to enforce its patent for the secret process used to create artificial sweetener Ace-K (which itself is not patented) against Chinese-based companies that were unlawfully using that patent process. The International Trade Commission concluded that Celanese’s sale of Ace-K before obtaining a patent for its secret manufacturing process invalidated the patent under the AIA’s on-sale bar. The Federal Circuit affirmed on appeal.

We argue in our brief that the AIA and its legislative history suggest that Congress intended to require disclosure of the claimed invention (here, the secret manufacturing process) for the on-sale bar to apply to a process. Certiorari is warranted to clarify the on-sale bar’s application to process patents—a critical issue to the manufacturing community, considering protecting innovative processes is critical to maintaining global competitiveness of American manufacturers.