What constitutes a “commercial offer for sale” in patent law?
A “commercial offer for sale” in patent law is determined by applying the law of contracts as generally understood. According to MPEP 2152.02(d), “[a] sale is a contract between parties to give and to pass rights of property for consideration which the buyer pays or promises to pay the seller for the thing bought or sold.” The Federal Circuit has stated that the offer must be commercially reasonable and made to potential customers. For example:
- Providing price quotes to potential customers
- Offering products for sale through catalogs or brochures
- Displaying products at trade shows with the intent to sell
It’s important to note that the offer must be more than merely exploratory in nature; it should demonstrate a willingness to enter into a binding contract.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2152.02(D) - On Sale,
Patent Law,
Patent Procedure