What does “ready for patenting” mean in the context of the on sale bar?
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.
The phrase “ready for patenting” is a key component of the two-part test established by the Supreme Court in Pfaff v. Wells Electronics, Inc. for determining whether an invention is “on sale” under pre-AIA 35 U.S.C. 102(b). An invention is considered “ready for patenting” when it is either:
- Reduced to practice; or
- Depicted in drawings or described in writings of sufficient nature to enable a person of ordinary skill in the art to practice the invention.
As stated in MPEP 2133.03(c):
“‘Ready for patenting,’ the second prong of the Pfaff test, ‘may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.’”
It’s important to note that an invention can be “ready for patenting” even if it has not been actually reduced to practice. Detailed drawings or written descriptions that would enable a skilled artisan to practice the invention are sufficient to meet this criterion.