A person shall be entitled to a patent unless -
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or
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 U.S. application 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. Ferag AG v. Quipp, Inc., 45 F.3d 1562, 1565, 33 USPQ2d 1512, 1514 (Fed. Cir. 1995).
The on-sale bar of 35 U.S.C. 102(b) is triggered if the invention is both
Traditional contract law principles are applied when determining whether a commercial offer for sale has occurred. See Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 1048, 61 USPQ2d 1225, 1229 (Fed. Cir. 2001), petition for cert. filed, 71 USLW 3093 (Jul. 03, 2002) (No. 02-39); Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041,1047, 59 USPQ2d 1121, 1126 (Fed. Cir. 2001) ("As a general proposition, we will look to the Uniform Commercial Code ('UCC') to define whether a communication or series of communications rises to the level of a commercial offer for sale.").
The on-sale bar is an extraordinarily (some would argue needlessly) complex body of patent law in all but the simplest cases For instance, licenses are normally not considered a sale, even when a sample product is transferred as part of the license, but a computer software license is considered a barring sale even if the patent claims are method claims. The normal standard of reduction to practice (which requires recognizing the invention) has been ignored in several cases, for example an offer for sale of a waste disposal machine which, if accepted would have practiced a later invention due to the special nature of the waste, was considered a barring sale even though the invention had not even been conceived yet and the sale did not take place.
There is no joint-development exception to the on-sale bar, meaning that the on-sale bar in many cases is triggered when the invention is "ready for patenting," which can occur when an inventor is working alone at a drafting table. The ready-for-patenting standard is judged retrospectively in an adversarial setting, so even if an invention was far too premature to have been put into a patent application, with details missing, it may still be deemed to have been "ready for patenting." Moreover, an inadequate disclosure cannot provide priority for a continuation-in-part application, so an inventor who fears the on-sale bar and files a premature patent application may not be able to rescue it later.
Inventor Not Permitted to Change Deposition Testimony Invalidating Patent Under On-Sale Bar.(Delaware Valley Floral Group Inc. v. Shaw Rose Nets LLC)(Case overview)
May 05, 2010; This article appeared in Last Month At The Federal Circuit, April 2010 Judges: Bryson, Linn, Prost (author) [Appealed from S.D....
On-Sale Bar Violation "Blows Up" Where Invention Was "Not Ready For Patenting".(Gemmy Industries Corp.)(Chrisha Creations Ltd.)
Jul 25, 2006; The Federal Circuit vacated the district court's finding of invalidity based on the on-sale bar because, despite sworn testimony...
Charging "Beta Testers" Triggers The On-Sale Bar; Does Not Qualify As Experimental Use.(Cygnus Telecommunications Technology v. Telesys Communications LLC.)
Oct 13, 2008; Charging "beta testers" to place calls with a fledgling telecommunications invention more than a year prior to filing a patent...