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On-Sale Bar
For Sale
• Sale or offer for sale
• Traditionally, required (1) reduction to
practice, and (2) sale or offer for sale
• Now, no “reduction to practice” required- if
you sell an uncompleted product, it may bar a
patent if the application is filed more than 1
year later.
• See Pfaff v. Wells Electronics, Inc.
Pfaff v. Wells
4/8/81
4/19/81
The “Critical Date”
for the
Patent Application
Texas Instruments places P.O.
for 30,100 new chip carriers
7/81
Order Filled
4/19/82
Pfaff Files Patent
Application
On Sale Bar – Litigation Issues
• Sale can be completely confidential and still
bar the patent
– A truly “secret” form of prior art
• Discovery is obviously crucial
– Spending time with the shoeboxes . . .
[I]t is evident that Pfaff could have obtained
a patent on his novel socket when he
accepted the purchase order from Texas
Instruments for 30,100 units. At that time
he provided the manufacturer with a
description and drawings that had
"sufficient clearness and precision to
enable those skilled in the matter" to
produce the device.
-- 525 U.S. 55, 63
Group One, Ltd. v. Hallmark Cards, Inc.
254 F.3d 1041
C.A.Fed.,2001.
[W]e will look to the Uniform Commercial
Code ("UCC") to define whether, as in this
case, a communication or series of
communications rises to the level of a
commercial offer for sale.
Hallmark Cards
“Because of the importance of having a
uniform national rule regarding the on-sale
bar, we hold that the question of whether
an invention is the subject of a commercial
offer for sale is a matter of Federal Circuit
law, to be analyzed under the law of
contracts as generally understood.”
Problems with Hallmark?
Lacks "(1) vigorously solicited wheel
manufacturers to whom Lacks could sell
overlays and on whose wheels Lacks
could perform its overlay- bonding method,
and (2) vigorously solicited [original
equipment manufacturers] to specify and
purchase wheels clad by the laterpatented method."
• “[T]he Special Master did not find this
activity, nor any other of Lacks' activities,
to be a commercial offer for sale as
defined by contract law.”
– Lacks Industries, Inc. v. McKechnie
322 F.3d 1335, 1348 (Fed. Cir. 2003)
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