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 AIA treat secret commercial use compared to pre-AIA law?
The treatment of secret commercial use under the AIA differs significantly from pre-AIA law. Under pre-AIA law, secret commercial use by the inventor could bar patentability. The MPEP states: “[A]n inventor’s own prior commercial use, albeit kept secret, may constitute a public use or sale under [pre-AIA 35 U.S.C.] 102(b), barring him from obtaining a…
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 MoreWhat are the criteria for determining if an invention was “on sale” under pre-AIA law?
Under pre-AIA law, the criteria for determining if an invention was “on sale” were established in the Pfaff v. Wells Electronics, Inc. case. The MPEP summarizes these criteria as follows: “The pre-AIA case law indicates that on sale activity will bar patentability if the claimed invention was: (1) the subject of a commercial sale or…
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 MoreWhat does “in this country” mean in pre-AIA 35 U.S.C. 102(b)?
The phrase “in this country” in pre-AIA 35 U.S.C. 102(b) refers specifically to the United States and its territories. According to the MPEP: “The language ‘in this country’ in pre-AIA 35 U.S.C. 102(b) does not include other WTO or NAFTA member countries, but includes any State of the United States, the District of Columbia, and…
Read MoreCan 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…
Read MoreWhat 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…
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