How does the “on sale” bar apply to foreign activities under pre-AIA 35 U.S.C. 102(b)?
The application of the “on sale” bar to foreign activities under pre-AIA 35 U.S.C. 102(b) is nuanced. Generally, it does not apply to activities entirely outside the U.S., but there are exceptions:
1. Foreign manufacture and delivery: “The ‘on sale’ bar does not generally apply where both manufacture and delivery occur in a foreign country.” (MPEP 2133.03(d))
2. Substantial U.S. activity: “‘On sale’ status can be found if substantial activity prefatory to a ‘sale’ occurs in the United States.” (MPEP 2133.03(d))
3. U.S.-originating offers: “An offer for sale, made or originating in this country, may be sufficient prefatory activity to bring the offer within the terms of the statute, even though sale and delivery take place in a foreign country.” (MPEP 2133.03(d))
4. Foreign offers communicated to U.S. buyers: “The same rationale applies to an offer by a foreign manufacturer which is communicated to a prospective purchaser in the United States prior to the critical date.” (MPEP 2133.03(d))
These guidelines help determine whether foreign sales activities can trigger the on-sale bar under pre-AIA law.
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