How does the on-sale bar apply to claimed processes?
The application of the on-sale bar to claimed processes differs from its application to products or devices. The MPEP explains:
A claimed process, which is a series of acts or steps, is not sold in the same sense as is a claimed product, device, or apparatus, which is a tangible item.
(MPEP 2133.03(c))
However, the on-sale bar can still be triggered for processes in several ways:
- Sale of a product made by the claimed process
- Performing the claimed process for consideration
- Sale of a device embodying the claimed process
It’s important to note that merely selling “know-how” or knowledge about a process does not constitute a sale of the invention under pre-AIA 35 U.S.C. 102(b).
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2133.03(C) - The "Invention",
Patent Law,
Patent Procedure