Case: 23-1336   Document: 44     Page: 1   Filed: 07/31/2024




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                    SANHO CORP.,
                      Appellant

                            v.

      KAIJET TECHNOLOGY INTERNATIONAL
                  LIMITED, INC.,
                      Appellee
               ______________________

                       2023-1336
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2021-
 00886.
                  ______________________

                 Decided: July 31, 2024
                 ______________________

     DAVID KEELER LUDWIG, Hill, Kertscher & Wharton
 LLP, Atlanta, GA, argued for appellant. Also represented
 by STEVEN G. HILL.

     RYAN GENTES, Lee & Hayes, PC, Atlanta, GA, argued
 for appellee. Also represented by R. BRUCE BOWER, JAMES
 D. STEIN.
                  ______________________

    Before DYK, CLEVENGER, and STOLL, Circuit Judges.
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 2                                         SANHO CORP. v.
             KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 DYK, Circuit Judge.
     Appellant Sanho Corporation (“Sanho”) appeals from a
 final decision of the Patent Trial and Appeal Board
 (“Board”) finding all challenged claims of 

 (“the ’429 patent”) unpatentable as obvious.
 Each obviousness combination included U.S. Patent Appli-
 cation Publication No. 2018/0165053, known as Kuo. Kuo
 ordinarily would be prior art because its effective filing
 date predates the effective filing date of the ’429 patent,
 save for the exception in 

(b)(2)(B). The sole
 issue on appeal is the applicability of the prior art excep-
 tion in that provision. It provides that “[a] disclosure shall
 not be prior art to a claimed invention under subsection
 [102](a)(2) if . . . the subject matter disclosed had, before
 such subject matter was effectively filed under subsec-
 tion (a)(2), been publicly disclosed by the inventor.”
 § 102(b)(2)(B).
     Sanho argues that, before Kuo’s effective filing date,
 the inventor of the ’429 patent “publicly disclosed” the rel-
 evant subject matter of Kuo through the private sale of a
 product (the HyperDrive) allegedly embodying the claimed
 invention. We understand the Board to have concluded
 that this private sale does not qualify for the exemption of
 section 102(b)(2)(B), and Kuo is prior art. We affirm.
                        BACKGROUND
      The ’429 patent concerns “[a] port extension apparatus
 for extending ports of an end-user device,” such as a laptop
 computer. J.A. 928, at col. 6, ll. 46–47. The specification
 describes a series of ports and connections as well as a data
 transmission control module, which together allow devices
 “to connect to data ports of an end-user device.” J.A. 927,
 at col. 3, ll. 2–3. This allows for easier connections be-
 tween, for example, a laptop computer and peripheral de-
 vices such as a printer.
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 SANHO CORP. v.                                             3
 KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


      Kaijet Technology International Limited, Inc. (“Kai-
 jet”) filed a petition for inter partes review challenging
 most claims of the ’429 patent as obvious. Each obvious-
 ness ground relied on a combination of prior art that in-
 cluded Kuo. The relevant portion of Kuo discloses a
 “control system compris[ing] a main control unit that sup-
 ports USB Type-C (USB-C) interface specification, [and] an
 image signal processing unit electrically connected to the
 main control unit and adapted for receiving a display port
 signal.” J.A. 1362, ¶ 21 (numerals omitted). Thus, both
 the ’429 patent and Kuo concern docking stations for con-
 necting multiple devices to an end user device.
     In the final written decision, the Board found claims 1–
 6 and 13–17 of the ’429 patent unpatentable as obvious, re-
 lying on Kuo as prior art under section 102(a)(2). Kuo’s ef-
 fective filing date is December 13, 2016—before the ’429
 patent’s priority date of April 27, 2017. The question was
 whether the patentee was correct in arguing that Kuo is
 not prior art by virtue of section 102(b)(2)(B) of the Patent
 Act because the inventor purportedly “publicly disclosed”
 the relevant subject matter of Kuo through the private sale
 of a device that incorporated the invention and predated
 Kuo’s effective filing date.
      Specifically, Sanho contended that the inventor’s sale
 of the so-called HyperDrive device constituted a public dis-
 closure by the inventor of the relevant subject matter in
 Kuo. Mr. Liao, the inventor of the ’429 patent, offered to
 sell the HyperDrive to Sanho’s owner on November 17,
 2016. After obtaining a HyperDrive sample, Sanho placed
 an order for 15,000 HyperDrive units on December 6, 2016,
 that was accepted by Mr. Liao’s company, GoPod Group
 Ltd. (constituting an actual sale). Sanho made no showing
 that the sale of the HyperDrive that predated Kuo’s effec-
 tive filing date was publicized in any way, or that there
 were any such sales other than the private sale of Hyper-
 Drives from the inventor to Sanho. There is also nothing
 in the record to indicate that the order for 15,000
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 4                                         SANHO CORP. v.
             KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 HyperDrives was fulfilled before Kuo’s effective filing date,
 or what became of those devices.
      The Board determined that the “Patent Owner fail[ed]
 to show that the inventor publicly disclosed the subject
 matter of Kuo before Kuo’s effective filing date.” J.A. 39. 1
 Therefore, the Board concluded that “Kuo qualifies as prior
 art, not excluded under § 102(b)(2)(B).” J.A. 45. The Board
 found all challenged claims unpatentable over combina-
 tions that all included Kuo.
    This appeal followed. We have jurisdiction pursuant to
 

(a)(4)(A). 2



     1    Before the Board, Sanho also contended that an
 online “Kickstarter” campaign with descriptions and pho-
 tographs of the device also constituted a public disclosure.
 The Board rejected this argument after finding that the ar-
 ticles and photographs were either published after Kuo’s
 effective filing date or were insufficiently clear and detailed
 to disclose the relevant subject matter. That determina-
 tion was not challenged in Sanho’s opening brief. Although
 Sanho suggested in its reply brief that Sanho’s owner “pub-
 licized the sale on Appellant’s Kickstarter website, publish-
 ing images, videos, and other information,” Appellant’s
 Reply Br. 10, any argument that the Kickstarter campaign
 further disclosed the subject matter of the sale is forfeited
 because it was not raised in the opening brief. SmithKline
 Beecham Corp. v. Apotex Corp., 

 (Fed.
 Cir. 2006).
      2   Kaijet informed us that Sanho had granted it a cov-
 enant not to sue on the ’429 patent and that Kaijet “no
 longer has any commercial interest in the validity of this
 patent.” Oral Arg. 23:20–52. We consider sua sponte
 whether the case is moot. See Already, LLC v. Nike, Inc.,
 

 (2013). We conclude that it is not. The
 Board’s final written decision found claims 1–6 and 13–17
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 SANHO CORP. v.                                               5
 KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


                          DISCUSSION
     On appeal, Sanho argues that “[t]he Board’s failure to
 find that the HyperDrive sale to Sanho itself constituted a
 public disclosure under 

(b)(2)(B) was legal
 error.” Appellant Op. Br. 17. In response, Kaijet argues
 that, even if the HyperDrive embodied the relevant fea-
 tures of the claimed invention, the sale did not publicly dis-
 close the relevant subject matter for purposes of
 section 102(b)(2)(B) because the relevant features of the
 claimed invention were not sufficiently publicized to render
 the subject matter “publicly disclosed.” 3 We consider
 whether a non-confidential but otherwise private sale re-
 sults in an invention’s subject matter being “publicly dis-
 closed” for purposes of section 102(b)(2)(B).
                               I
    “In 2011, Congress enacted the Leahy-Smith America
 Invents Act (AIA), transforming the U.S. patent system



 of the ’429 patent unpatentable. Sanho still has a legally
 cognizable interest in the outcome of the appeal since it
 could assert the patent against other parties. It is still pos-
 sible for us to grant relief by remanding or vacating the
 Board’s decision (assuming Sanho prevails). See Uniloc
 2017 LLC v. Hulu, LLC, 

 (Fed. Cir.
 2020).
     3    Kaijet argues alternatively that, even if the sale
 was a public disclosure for purposes of the statute, it did
 not disclose the relevant subject matter of Kuo because Kuo
 described a single-chipset data transmission control mod-
 ule and Sanho has failed to demonstrate that the Hyper-
 Drive disclosed the same configuration. We do not reach
 this issue, but assume, without deciding, that Sanho is cor-
 rect that the HyperDrive device embodied the relevant
 teachings of Kuo that were asserted against the ’429 pa-
 tent.
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 6                                          SANHO CORP. v.
              KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 from a first-to-invent to a first-inventor-to-file system for
 determining patent priority.” SNIPR Techs. Ltd. v. Rocke-
 feller Univ., 

 (Fed. Cir. 2023) (citing
 Pub. L. No. 112–29, 

 (2011)). In doing so, Con-
 gress “redefined what constitutes ‘prior art’ against a pa-
 tent or application” by amending section 102 of the Patent
 Act. 

. Section 102(a)–(b) as revised by the AIA
 is quoted in Appendix A to this opinion.
      Under the AIA, whether a reference is prior art is de-
 termined based on “the effective filing date of the claimed
 invention,” rather than the date of the invention. 

(a). Thus, prior art includes other patent applications
 effectively filed, or other patents issued, before the effective
 filing date of the patent at issue. 

 § 102(a)(2). Sec-
 tion 102(a)(1) also defines prior art to include situations in
 which the claimed invention was “described in a printed
 publication, or in public use, on sale, or otherwise available
 to the public before the effective filing date of the claimed
 invention.” However, Congress provided exceptions for cer-
 tain references that would otherwise be prior art. These
 exceptions fit into two broad categories.
     First, section 102(b) contains two largely parallel ex-
 ceptions at subsections (b)(1)(A) and (b)(2)(A). The subsec-
 tion (b)(1)(A) exception applies to disclosures covered by
 section 102(a)(1) (“described in a printed publication, or in
 public use, on sale, or otherwise available to the public”)
 created within one year before patent filing. It provides a
 prior art exception for a “disclosure” that was either “made
 by the inventor . . . or by another who obtained the subject
 matter disclosed directly or indirectly from the inventor.”
 § 102(b)(1)(A). Thus, for example, a private or public sale
 by the inventor during the one-year grace period is not
 prior art. Subsection (b)(1)(A) provides protection only
 during the one-year grace period. The parallel provision at
 subsection (b)(2)(A) applies to disclosures covered by sec-
 tion 102(a)(2) (patent applications filed by another). It pro-
 vides a prior art exception for “subject matter disclosed”
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 SANHO CORP. v.                                               7
 KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 that “was obtained directly or indirectly from the inventor.”
 § 102(b)(2)(A). Subsection (b)(2)(A) is not limited to disclo-
 sures in the one-year grace period. Together, subsec-
 tions (b)(1)(A) and (b)(2)(A) operate in the context of the
 first-inventor-to-file regime to provide protection for other-
 wise invalidating disclosures by the patentee or by some-
 one who obtained the subject matter from the patentee,
 whether directly or indirectly. These subsections do not in-
 clude a “publicly disclosed” requirement.
     Second, section 102(b) contains two provisions directed
 at disclosures by another (that is, not by the inventor) 4 af-
 ter the “subject matter disclosed” was “publicly disclosed
 by the inventor” in subsections (b)(1)(B) and (b)(2)(B). Sub-
 section (b)(1)(B) refers to activities by the inventor or a
 third party that would otherwise be invalidating disclo-
 sures under section 102(a)(1) (“described in a printed pub-
 lication, or in public use, on sale, or otherwise available to
 the public”) made within one year of the patent filing, and
 subsection (b)(2)(B) refers to patent applications by an-
 other (section 102(a)(2) disclosures) that disclosed the
 “subject matter [already] disclosed” by the inventor, with-
 out regard to the one-year time limit. In summary, these
 provisions except from prior art disclosures that were made
 after the invention was “publicly disclosed” by the inventor.
     We are concerned here with the subsection (b)(2)(B) ex-
 ception, which applies only to prior patent filings by an-
 other and provides that such a “disclosure shall not be prior
 art” if “the subject matter disclosed had . . . been publicly
 disclosed by the inventor.”




     4   For simplicity we use the term “inventor” here to
 cover both the inventor and another who obtained “the sub-
 ject matter disclosed . . . directly or indirectly from the in-
 ventor.” § 102(b)(2)(A).
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 8                                         SANHO CORP. v.
             KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


                               II
     Sanho contends that the phrase “publicly disclosed” in
 section 102(b)(2)(B) should be construed to include all the
 “disclosure[s]” described in section 102(a)(1), including sit-
 uations in which the invention was “on sale.” It points out
 that under the Supreme Court’s decision in Helsinn
 Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., 

 (2019), a private commercial sale constitutes
 a disclosure under section 102(a)(1). The issue here is
 whether placing something “on sale” in section 102(a)(1)
 means that the invention embodied by the device sold is
 necessarily “publicly disclosed” for purposes of sec-
 tion 102(b)(2)(B).
                               A
     We start with the language of the statute. Sec-
 tion 102(b)(2)(B) excludes “[a] disclosure” from prior art if
 “the subject matter disclosed had . . . been publicly dis-
 closed by the inventor” before the prior art’s effective filing
 date. Sanho contends that the “plain language of 

 indicates that a product sale is a ‘disclosure,’” includ-
 ing “[e]ven [s]ales [n]ot [d]isclosed to the [p]ublic.” Appel-
 lant Op. Br. 17, 18 (emphasis omitted). This is so because,
 according to Sanho, the plain meaning of “publicly dis-
 closed” in section 102(b)(2)(B) is the same as “disclosed”
 and “disclosure” used elsewhere in section 102. Sanho ar-
 gues that “identical words used in different parts of the
 same statute are presumed to have the same meaning,” so
 the term “publicly disclosed” should also include “disclo-
 sures” (i.e., private sales). Appellant Op. Br. 18 (quoting
 Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 

 (2006)).
     Sanho’s first problem is that the words “publicly dis-
 closed” are not the same as the word “disclosed.” The use
 of the two different phrases—“disclosed” and “publicly dis-
 closed”—suggests that Congress intended the phrases to
 have different meanings. “A statute should be construed
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 SANHO CORP. v.                                              9
 KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 so that effect is given to all its provisions, so that no part
 will be inoperative or superfluous, void or insignificant
 . . . .” Hibbs v. Winn, 

 (2004) (alteration in
 original) (quoting 2A N. Singer, Statutes and Statutory
 Construction § 46.06, 181–86 (rev. 6th ed. 2000)). We think
 that the added word, “publicly,” both negates Sanho’s con-
 sistent usage argument and suggests that the sorts of dis-
 closures      that    qualify    for    the    exception    in
 section 102(b)(2)(B) are a narrower subset of “disclosures”
 (i.e., the disclosures that are “public”). See Helsinn
 Healthcare S.A. v. Teva Pharms. USA, Inc., No. 2016-1284,
 

, at *4 (Fed. Cir. Jan. 16, 2018) (O’Malley,
 J., concurring in denial of rehearing en banc) (non-prece-
 dential) (“If all prior art events—i.e., all ‘disclosures’—re-
 cited in § 102(a) were already public disclosures, the word
 ‘publicly’ in § 102(b)(1)(B) would be redundant, and there
 would be no need for a separate rule for third-party disclo-
 sures.”). That is, the exception applies only to “disclosures”
 that result in the subject matter of the invention being
 “publicly disclosed.”
     We assume Congress means what it says and says
 what it means. Here, Congress used two different phrases
 in two separate provisions. If Congress had intended that
 the exception for things “publicly disclosed” should be as
 broad as the invalidating “disclosures” in the immediately
 preceding subsection, it easily could have said so, either by
 using the same phrase or by cross-referencing the earlier
 provision. But it did neither; it instead used a new phrase
 to define the exceptions. Thus, we reject Sanho’s argument
 that the plain language of the statute requires Sanho’s pre-
 ferred result. Rather, it points strongly in the opposite di-
 rection.
                               B
     Sanho’s reading is also contrary to the purpose of the
 exception. Section 102(b) appears to have as its purpose
 protection of an inventor who discloses his invention to the
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 10                                        SANHO CORP. v.
             KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 public before filing a patent application because the inven-
 tor has made his invention available to the public—a major
 objective of providing patent protection in the first place.
 The Supreme Court has described the “patent ‘bargain’” as
 the grant of a limited term of exclusivity “[i]n exchange for
 bringing ‘new designs and technologies into the public do-
 main through disclosure.’” Amgen Inc. v. Sanofi, 

 (2023) (quoting Bonito Boats, Inc. v. Thunder
 Craft Boats, Inc., 

 (1989)); see also
 Pfaff v. Wells Elecs., Inc., 

 (1998) (“[T]he pa-
 tent system represents a carefully crafted bargain that en-
 courages both the creation and the public disclosure of new
 and useful advances in technology, in return for an exclu-
 sive monopoly for a limited period of time.”).
      In light of this purpose, “publicly disclosed by the in-
 ventor” must mean that it is reasonable to conclude that
 the invention was made available to the public. If the sub-
 ject matter of the invention were kept private, the inventor
 would not have disclosed the invention to the public. Sec-
 tion 102(b)(2)(B) thus works to protect inventors who share
 their inventions with the public from later disclosures
 made by others. Animating this exception appears to be
 the idea that priority should be given to the patentees who
 make their invention available to the public before a patent
 application filing by another. See 157 CONG. REC. S1360,
 S1369 (daily ed. Mar. 8, 2011) (statement of Sen. Jon Kyl).
 It would also be unfair to deny a patent to the original in-
 ventor if the inventor published the subject matter of the
 invention, but another filed a patent application appropri-
 ating the same subject matter after the inventor’s public
 disclosure.
     Sanho’s construction cannot be correct. By isolating
 the phrase “publicly disclosed” from the purposes of the
 statutory scheme, Sanho’s reading violates “the cardinal
 rule that a statute is to be read as a whole.” King v. St.
 Vincent’s Hosp., 

 (1991).
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 SANHO CORP. v.                                              11
 KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


                               C
     Finally, to the extent that legislative history is rele-
 vant, 5 the legislative history states that “public disclosure”
 requires that the invention be made available to the public.
 The floor debate explains that “[w]hether an invention has
 been made available to the public is the same inquiry that
 is undertaken under existing law to determine whether a
 document has become publicly accessible.” 157 CONG. REC.
 at S1370 (statement of Sen. Jon Kyl) (citing Cordis Corp.
 v. Boston Scientific Corp., 

 (Fed. Cir.
 2009) (holding that a reference was not prior art despite
 “distribution to a limited number of entities without a legal
 obligation of confidentiality” because it was not sufficiently
 publicly accessible)); see also JONATHAN S. MASUR & LISA
 LARRIMORE OUELLETTE, PATENT LAW 91–92 (1st ed. 2021)
 (“[P]ost-AIA § 102(b)(1)(B) states that the grace period only
 applies if the patent applicant publicly disclosed before the
 other party’s prior art came into existence.”).
     So too “[u]nder [section 102(b)(1)(B) and 102(b)(2)(B)],
 if an inventor publicly discloses his invention, no subse-
 quent disclosure made by anyone, regardless of whether
 the subsequent discloser obtained the subject matter from
 the inventor, will constitute prior art.” 157 CONG. REC. at
 S1369 (statement of Sen. Jon Kyl). These provisions oper-
 ate to ensure that, if the subject matter is sufficiently dis-
 closed “to the public,” a patentee will not be prevented from
 obtaining a patent merely because a third party disclosed
 what was already publicly disclosed by the inventor. Id.
                              III
     Sanho nonetheless argues that the language “publicly
 disclosed” incorporates earlier judicial interpretation of the


     5  In Helsinn we questioned whether the AIA floor de-
 bates were pertinent to interpretation of the statute. 

 (Fed. Cir. 2017), aff’d, 

.
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 12                                        SANHO CORP. v.
             KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 word “public” in the context of invalidating “public use,” de-
 spite the lack of any evidence that this was the congres-
 sional design. According to Sanho, under these cases a
 public use is a “‘public’ disclosure under 

(b)(2)(B) so long as the recipient of the device is not
 subject to secrecy obligations.” Appellant Op. Br. 21.
      Sanho again ignores the fact that “publicly disclosed”
 and “public use” are different terms, and that sec-
 tion 102(a) and section 102(b) serve fundamentally differ-
 ent purposes. While public disclosure of the features of the
 invention under section 102(b)(2)(B) could be accomplished
 through a public disclosure involving a public use, there is
 no requirement that such a public use necessarily “publicly
 disclose[s]” the invention. The Supreme Court has been
 clear that a public commercial use that does not disclose to
 the public all the features of the invention can still be in-
 validating prior art under the statute. See, e.g., Helsinn,
 

 (“[O]ur precedents suggest that a sale or
 offer of sale need not make an invention available to the
 public.”). Because there is a difference between a commer-
 cial public use and a disclosure that puts the public in pos-
 session of the invention, we will not lightly assume that the
 new statutory phrase “publicly disclosed” incorporates ex-
 isting law on the issue of “public use.”
      Sanho’s misplaced reliance on the Supreme Court’s de-
 cision in Egbert v. Lippmann makes clear the problems
 with its theory. That case concerned whether the use of an
 invention (a modified corset spring) by one person was “a
 public use within the meaning of the statute.” 

 (1881).      That statute, a precursor to sec-
 tion 102(a)(1), denied a patent if the invention “had been in
 public use or on sale with the applicant’s consent or allow-
 ance” outside the grace period. Act of July 4, 1836, 24
 Cong. Ch. 357 § 7, 

. The case thus concerned the
 scope of invalidating prior art. It did not hold that an in-
 validating public use must necessarily “publicly disclose”
 an invention. Rather, the Court remarked that “some
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 SANHO CORP. v.                                             13
 KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 inventions are by their very character only capable of being
 used where they cannot be seen or observed by the public
 eye,” confirming that public use is a distinct concept from
 public disclosure. Egbert, 

.
      Our cases also do not remotely suggest that the reasons
 for an expansive view of what constitutes commercial “pub-
 lic use” would apply with equal force to the exception from
 prior art for subject matter “publicly disclosed” in sec-
 tion 102(b)(2)(B). Indeed, our cases suggest the opposite.
 “The proper test for the public use prong of the [pre-AIA]
 statutory bar is whether the purported use: (1) was acces-
 sible to the public; or (2) was commercially exploited.” Invi-
 trogen Corp. v. Biocrest Mfg., L.P., 

 (Fed. Cir. 2005) (emphasis added). The latter commercial
 exploitation rationale is based on limiting the patentee’s
 monopoly to the term provided by Congress. This concern
 has nothing to do with the issue here, whether the public
 has learned the relevant aspects of the invention and
 whether it is fair to treat a subsequent patent filing by an-
 other as prior art. See BASF Corp. v. SNF Holding Co.,
 

 (Fed. Cir. 2020) (noting that “an inven-
 tor’s commercial exploitation of [a] secret process squarely
 implicated the Supreme Court’s rationale for creating the
 statutory bars” regardless of whether it was “‘publicly’
 used” in a literal sense (discussing Metallizing Eng’g Co. v.
 Kenyon Bearing & Auto Parts Co., 

 (2d
 Cir. 1946))).
      We see no reason to incorporate the judicial interpreta-
 tions of “public use” in section 102(a)(1) into the definition
 of “publicly disclosed” in section 102(b)(2)(B), and therefore
 reject Sanho’s argument.
                              IV
     Turning to the facts of this case, we think it is clear
 that the sale alleged by Sanho did not “publicly disclose”
 the relevant subject matter. Before the Board, Sanho re-
 lied on declarations from the inventor and from Sanho’s
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 14                                        SANHO CORP. v.
             KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 owner to establish a sale before Kuo’s effective filing date.
 The inventor testified that, before Kuo’s effective filing
 date, he communicated with Sanho’s owner on the messag-
 ing service WeChat and “sent to Sanho via private courier
 a finished version of the [HyperDrive].” J.A. 6088, ¶ 25.
 He further testified that “Sanho placed an order for 12,000
 gray [HyperDrives] and 3,000 silver [HyperDrives] which
 was accepted” days before Kuo’s effective filing date.
 J.A. 6094, ¶ 26. Sanho’s owner provided similar testimony,
 and added that Sanho “transmitt[ed] payment in the
 amount of $153,600” for the HyperDrives. J.A. 6105, ¶ 20.
 There was no testimony concerning whether the order was
 fulfilled, or what became of the 15,000 HyperDrive devices
 (if they were ever manufactured). Although there was no
 confidentiality or nondisclosure agreement, there was no
 teaching of the features of the invention to others beyond
 Sanho.
      On these facts, we do not think it is a close question
 that the relevant subject matter of the invention, that is,
 the claimed circuitry allegedly described in Kuo, was “pub-
 licly disclosed” by the sale. The testimony establishes only
 that there was a private sale between two individuals ar-
 ranged via private messages. There is no indication the
 sale disclosed the inventive subject matter to the public
 sufficiently for the exception to prior art in sec-
 tion 102(b)(2)(B) to apply. Nor does Sanho claim that it
 made a public disclosure of the invention through the Hy-
 perDrive sale, beyond its statutory construction arguments
 rejected above. We conclude that the sale of the Hyper-
 Drive here did not publicly disclose the subject matter re-
 lied on from Kuo as required by section 102(b)(2)(B). We
 therefore conclude that the Board did not err in determin-
 ing that Kuo was prior art.
                              V
    We have concluded that the sale at issue here did not
 publicly disclose the relevant subject matter under
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 KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


 section 102(b)(2)(B) because Sanho failed to show that the
 subject matter of the invention itself was publicly dis-
 closed. We need not decide exactly what is necessary for
 demonstrating that a sale publicly disclosed the relevant
 subject matter, or whether to apply the prevailing standard
 for when a printed publication is sufficiently publicly ac-
 cessible to qualify as prior art (see the discussion above of
 the legislative history). Here, it is sufficient to say that
 Sanho has made no showing that the sale at issue publicly
 disclosed the relevant aspects of the invention to the public.
 All that Sanho has shown is the existence of a private sale
 of the device. That is clearly not enough to qualify for the
 exception in section 102(b)(2)(B), even if we assume, see su-
 pra n.3, that the device did embody the subject matter of
 the invention.
                         CONCLUSION
     Because Sanho has failed to demonstrate that the pri-
 vate but non-confidential sale of a product allegedly embod-
 ying the invention resulted in the relevant subject matter
 being “publicly disclosed” under section 102(b)(2)(B), the
 Board did not err in treating the Kuo reference post-dating
 that sale as prior art.
                         AFFIRMED
                            COSTS
 Costs to appellee.
Case: 23-1336     Document: 44     Page: 16     Filed: 07/31/2024




 16                                         SANHO CORP. v.
              KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


                          APPENDIX A
 [35 U.S.C.] § 102. Conditions for patentability;
 novelty
 (a) NOVELTY; PRIOR ART.—A person shall be enti-
 tled to a patent unless—
     (1) the claimed invention was patented, described in a
 printed publication, or in public use, on sale, or otherwise
 available to the public before the effective filing date of the
 claimed invention; or
      (2) the claimed invention was described in a patent is-
 sued under section 151, or in an application for patent pub-
 lished or deemed published under section 122(b), in which
 the patent or application, as the case may be, names an-
 other inventor and was effectively filed before the effective
 filing date of the claimed invention.
 (b) EXCEPTIONS.—
    (1) DISCLOSURES MADE 1 YEAR OR LESS BEFORE THE
 EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—A dis-
 closure made 1 year or less before the effective filing date
 of a claimed invention shall not be prior art to the claimed
 invention under subsection (a)(1) if—
      (A) the disclosure was made by the inventor or joint
      inventor or by another who obtained the subject
      matter disclosed directly or indirectly from the in-
      ventor or a joint inventor; or
      (B) the subject matter disclosed had, before such
      disclosure, been publicly disclosed by the inventor
      or a joint inventor or another who obtained the sub-
      ject matter disclosed directly or indirectly from the
      inventor or a joint inventor.
    (2) DISCLOSURES APPEARING IN APPLICATIONS AND
 PATENTS.—A disclosure shall not be prior art to a claimed
 invention under subsection (a)(2) if—
Case: 23-1336    Document: 44     Page: 17    Filed: 07/31/2024




 SANHO CORP. v.                                              17
 KAIJET TECHNOLOGY INTERNATIONAL LIMITED, INC.


     (A) the subject matter disclosed was obtained di-
     rectly or indirectly from the inventor or a joint in-
     ventor;
     (B) the subject matter disclosed had, before such
     subject matter was effectively filed under subsec-
     tion (a)(2), been publicly disclosed by the inventor
     or a joint inventor or another who obtained the sub-
     ject matter disclosed directly or indirectly from the
     inventor or a joint inventor; or
     (C) the subject matter disclosed and the claimed in-
     vention, not later than the effective filing date of
     the claimed invention, were owned by the same
     person or subject to an obligation of assignment to
     the same person. . . .