What is the “on sale” bar under pre-AIA 35 U.S.C. 102(b)?
The “on sale” bar under pre-AIA 35 U.S.C. 102(b) prevents an inventor from obtaining a patent if the invention was on sale in the United States more than one year prior to the date of the application for patent. The Supreme Court in Pfaff v. Wells Electronics, Inc. established a two-part test for determining if an invention is “on sale”:
- The product must be the subject of a commercial offer for sale; and
- The invention must be ready for patenting.
As stated in MPEP 2133.03(b):
“An impermissible sale has occurred if there was a definite sale, or offer to sell, more than 1 year before the effective filing date of the claimed invention and the subject matter of the sale, or offer to sell, fully anticipated the claimed invention or would have rendered the claimed invention obvious by its addition to the prior art.”
It’s important to note that even a single sale or offer to sell can trigger the on-sale bar. The sale does not need to be public, and the invention does not need to be in the hands of the public to trigger the bar.
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