Patently Strategic - Patent Strategy for Startups On-sale Bar: Patentability and Selling Your Invention
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Mar 16, 2021 Dr. Ashley Sloat and a panel of experts discuss the on-sale bar and its implications for patentability. They cover topics such as remote business communication, challenges of patentability in Europe, method as trade secrets, filing provisional patents, and managing patent filing budgets.
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On-Sale Bar Two-Prong Test
- The on-sale bar requires both a commercial offer for sale and that the invention is ready for patenting.
- Even rejected offers or licenses can trigger the on-sale bar if the invention is ready for patenting.
Experimental Use Exception
- Experimental use can exempt activities from triggering the on-sale bar if the inventor maintains control, avoids sales, and does not freely allow use.
- These criteria were upheld in Polaris Engineering v. Campbell Company ruling which differentiated experimental use from commercial sale.
Method Use Triggers On-Sale Bar
- Quest Integrity performed a patented method and delivered reports to clients without selling a physical product.
- This commercial use of the patented method triggered the on-sale bar despite no sale of hardware or software.