Can foreign sales activities trigger the on-sale bar under pre-AIA law?

Yes, foreign sales activities can potentially trigger the on-sale bar under pre-AIA law, but with specific conditions. The MPEP 2133.03(d) provides guidance on this:

1. General rule: “The ‘on sale’ bar does not generally apply where both manufacture and delivery occur in a foreign country.”

2. Exceptions:

• “‘On sale’ status can be found if substantial activity prefatory to a ‘sale’ occurs in the United States.”
• “An offer for sale, made or originating in this country, may be sufficient prefatory activity to bring the offer within the terms of the statute, even though sale and delivery take place in a foreign country.”
• “The same rationale applies to an offer by a foreign manufacturer which is communicated to a prospective purchaser in the United States prior to the critical date.”

These exceptions show that while purely foreign sales activities may not trigger the on-sale bar, any significant U.S. connection to the sale could bring it within the scope of pre-AIA 35 U.S.C. 102(b).

To learn more:

• on-sale bar
• foreign sales
• pre-AIA
• 35 U.S.C. 102(b)
• international patent law