What constitutes a commercial offer for sale in patent law?

A commercial offer for sale in patent law is a critical component of the on-sale bar. According to MPEP 2133.03(b):

“A sale is a contract between parties to give and to pass rights of property for consideration which the buyer pays or promises to pay the seller for the thing bought or sold.”

Key points to consider:

  • The offer must be commercial in nature, not merely an experimental use.
  • It doesn’t require an actual sale, just an offer to sell.
  • The offer must be for the patented invention, not just related products.
  • Even a single offer can trigger the on-sale bar.

Courts often look to the Uniform Commercial Code (UCC) to determine if a valid offer for sale has been made.

To learn more:

Topics: MPEP 2100 - Patentability, MPEP 2133.03(B) - "On Sale", Patent Law, Patent Procedure
Tags: Commercial Offer, On Sale Bar, patent law, Ucc