Pursuant to Section 102 of the Patent Act, the "on-sale" bar can invalidate a patent when the claimed invention has been the subject of a commercial sale or offer for sale, and the invention is ready for patenting. Prior to the enactment of the Leahy-Smith America Invents Act, certain sales of (or offers to sell) the claimed invention — including a purely private transaction involving the patent applicant — could trigger the on-sale bar. However, the AIA amended the language of the patent statute, sparking discussion as to whether the on-sale bar now requires that sales or offers to sell be "public" to qualify as invalidating. In a case of apparent first impression, a district court in New Jersey recently interpreted the amended statutory language to require just that. The district court's decision is currently on appeal to the Federal Circuit.
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Originally published by Law360
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