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…
Read MoreCan a single sale or offer to sell trigger the on-sale bar?
Yes, even a single sale or offer to sell can trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP explicitly states: Even a single sale or offer to sell the invention may bar patentability under pre-AIA 35 U.S.C. 102(b). (MPEP 2133.03(b)) This principle is supported by case law, including Consolidated Fruit-Jar Co. v. Wright…
Read MoreHow does the “ready for patenting” requirement affect the on-sale bar?
The “ready for patenting” requirement is the second prong of the Pfaff test for determining if an invention was “on sale” for the purposes of the on-sale bar. According to MPEP 2133.03(b), an invention is “ready for patenting” when either: The invention is reduced to practice; or The inventor has prepared drawings or other descriptions…
Read MoreDoes a sale need to be public to trigger the on-sale bar?
No, a sale does not need to be public to trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP clarifies this point: Unlike questions of public use, there is no requirement that “on sale” activity be “public.” “Public” as used in pre-AIA 35 U.S.C. 102(b) modifies “use” only. “Public” does not modify “sale.” (MPEP…
Read MoreHow does the Pfaff test apply to the “on sale” bar?
The Pfaff test, established by the Supreme Court in Pfaff v. Wells Electronics, Inc., is used to determine if an invention was “on sale” for the purposes of the on-sale bar. According to MPEP 2133.03(b), the test has two conditions: The product must be the subject of a commercial offer for sale; and The invention…
Read MoreWhat is the “on sale” bar in patent law?
The “on sale” bar in patent law refers to a provision that can prevent an inventor from obtaining a patent if their invention was on sale before the critical date. According to MPEP 2133.03(b): “A sale is a contract between parties to give and to pass rights of property for consideration which the buyer pays…
Read MoreCan a non-profit sale trigger the on-sale bar?
Yes, a non-profit sale can trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP clearly states: A “sale” need not be for profit to bar a patent. If the sale was for the commercial exploitation of the invention, it is “on sale” within the meaning of pre-AIA 35 U.S.C. 102(b). (MPEP 2133.03(b)) This interpretation…
Read MoreDoes the inventor’s consent matter for the on-sale bar?
No, the inventor’s consent is not required for a sale to trigger the on-sale bar under 35 U.S.C. 102(b). The MPEP clearly states: If the invention was placed on sale by a third party who obtained the invention from the inventor, a patent is barred even if the inventor did not consent to the sale…
Read MoreCan experimental use negate the on-sale bar in patent law?
Experimental use can potentially negate the on-sale bar in patent law. According to MPEP 2133.03(b): “If the use or sale was experimental, there is no bar under 35 U.S.C. 102(b).” Key points about experimental use: It must be for the purpose of perfecting the invention, not for commercial exploitation. The inventor must maintain control over…
Read MoreWhat constitutes a commercial offer for sale in patent law?
A commercial offer for sale in patent law is a critical component of the on-sale bar. According to MPEP 2133.03(b): “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.” Key points…
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