What constitutes a “commercial offer for sale” under the on-sale bar?
A commercial offer for sale, in the context of the on-sale bar, must be an offer that the other party could make into a binding contract by simple acceptance. The MPEP states:
“Only an offer which rises to the level of a commercial offer for sale, one which the other party could make into a binding contract by simple acceptance (assuming consideration), constitutes an offer for sale under [pre-AIA] §102(b).”
(MPEP 2133.03(b))
This interpretation comes from the case Group One, Ltd. v. Hallmark Cards, Inc. The offer must include material terms of the sale, such as price, quantity, and delivery terms. Merely discussing the possibility of a sale or negotiating terms does not necessarily constitute a commercial offer for sale.
It’s important to note that the offer doesn’t need to be accepted, and the product doesn’t need to be delivered for the on-sale bar to apply. Even a rejected offer can trigger the bar.
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