A private sale did not give NCS the protection it claimed against later prior art, the US Federal Circuit held on 14 September 2026 in NCS Multistage v. Nine Energy Service. NCS had supplied its AirLock device to one customer inside a sealed black tube that required cutting open. The record did not show that the public could learn the relevant features of the invention. That sale therefore failed to satisfy the public-disclosure exception in 35 U.S.C. §102(b)(1)(B), leaving TCO’s later sale to Apache and Apache’s use as prior art. The court also corrected claim construction, vacated the infringement, no-invalidity and damages judgments, and remanded for a new trial; it did not itself hold the patent invalid.
For businesses, an earlier commercial transaction is not automatically a shield against intervening prior art. Nor does the absence of a confidentiality agreement establish that technical information reached the public. JCIPO recommends maintaining separate evidence of sale dates, recipients, public access and the technical subject matter actually disclosed when coordinating customer trials and US patent filings. An order or delivery record may establish a transaction without demonstrating the disclosure needed for this particular exception.
