United States patent law prohibits the patenting of an invention that is “offered for sale” more than one year before the filing of a patent application. [FOOTNOTE 1]If a company shops its new technology around, and then waits more than one year to file a patent application, it can lose its patent rights. The so-called “on-sale bar” is a serious concern for companies operating in the quick-to-market Internet industry. The pursuit of customers and revenue can kill any patent rights an Internet company may hope to obtain. In the rush for short-term commercial success, Internet companies must “stop to smell the patents” or risk sacrificing the long-term competitive advantage afforded by patent protection.
The on-sale bar balances different policy objectives. In particular, the on-sale bar restricts the time available for commercial exploitation of an invention in advance of patent filing, and thereby counters efforts to prolong the patent term and the exclusivity that comes with it. In this manner, the on-sale bar promotes prompt filing and early disclosure of inventions to the benefit of the public. At the same time, the on-sale bar offsets such interests against the inventor’s need to test the commercial appeal of an invention, providing a one-year grace period for patent filing.
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