Pre-AIA and Post-AIA Issues Presented by the On-Sale Bar -

The “on-sale” bar to patentability refers to a sale or offer for sale of an invention that can invalidate the patent for that invention. The America-Invents-Act (AIA), which altered the language in the statutes that apply to the on-sale bar, has made it difficult to determine what actions might constitute a “sale” or an “offer for sale” under current law. Nevertheless, a clear understanding of the on-sale bar is necessary to enable entities of all sizes—from single inventors to large corporations—to effectively monitor activities surrounding their inventions, and to enable attorneys to provide such entities with accurate and useful advice.

Pre-AIA On-Sale Bar -

According to the pre-AIA on-sale bar, a patent cannot be obtained if the invention was on sale in the U.S. before a date exactly one year before the patent application was filed. This date is known as the application’s “critical date.” An inventor’s activities trigger the pre-AIA on-sale bar when two conditions are satisfied before the critical date (an analysis known as the Pfaff test): (1) the invention must be the subject of a commercial offer for sale, not primarily for experimental purposes; and (2) the invention must be ready for patenting.