Does the enablement inquiry apply to “on sale” determinations under AIA?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

No, the enablement inquiry does not apply to “on sale” determinations under AIA 35 U.S.C. 102(a)(1). This interpretation is consistent with pre-AIA law. The MPEP states:

“[T]he enablement inquiry is not applicable to the question of whether a claimed invention is ‘on sale’ under pre-AIA 35 U.S.C. 102(b).”

Since the AIA’s “on sale” provision is treated as having the same meaning as in pre-AIA law, this principle continues to apply. The focus is on whether a commercial sale or offer for sale occurred and whether the invention was ready for patenting, rather than on whether the sale or offer enabled the invention.