Can a sale by a third party trigger the on-sale bar?

Yes, a sale by an independent third party can trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP states:

A sale or offer for sale of the invention by an independent third party more than 1 year before the effective filing date of applicant’s claimed invention may be applied as prior art and may prevent applicant from obtaining a patent. (MPEP 2133.03(b))

However, there is an exception for patented methods that are kept secret and remain secret after a sale of the unpatented product of the method. In such cases, a sale by a third party does not trigger the on-sale bar, but a sale by the patentee or patent applicant would.

This interpretation highlights the importance of maintaining control over the invention and being cautious about disclosing it to third parties before filing a patent application, as even unknowing sales by others could potentially bar patentability.

To learn more:

• on-sale bar
• third-party sale
• prior art
• 35 U.S.C. 102(b)
• patent eligibility