Can secret sales or offers trigger the on-sale bar in patent law?
Yes, secret sales or offers can trigger the on-sale bar in patent law. The MPEP 2152.02(d) states:
“The courts have consistently held that an invention may be “on sale” even if the sale or offer is secret.”
This means that even if a sale or offer is not publicly known, it can still affect the patentability of an invention. The rationale behind this is that the on-sale bar is primarily concerned with preventing inventors from commercially exploiting their invention beyond the statutory period, regardless of whether the public is aware of the invention.
It’s important to note that while secret sales can trigger the on-sale bar, they must still meet the criteria of the Pfaff test:
- The product must be the subject of a commercial offer for sale
- The invention must be ready for patenting
Inventors and patent applicants should be cautious about any sales activities, even those conducted in secret, as they may impact the patentability of their inventions.
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