Legal Definitions - prior sale

In patent law, a prior sale refers to the act of selling or offering to sell an invention to the public before an inventor files a patent application for that invention. This concept is crucial because patent law generally requires inventors to file their patent application within one year of the first public sale or offer for sale of their invention. If an inventor waits longer than this one-year grace period, they may lose their right to obtain a patent for that invention, regardless of its novelty or inventiveness.

Here are some examples illustrating the concept of a prior sale:

• Example 1: Commercializing a Product Online

  An inventor, Sarah, develops a novel water filtration system for homes. To gauge market interest and generate initial revenue, she begins selling the system through her website and local hardware stores in January 2023. She plans to file a patent application later, once she has secured more funding.

  How it illustrates "prior sale": Sarah's act of selling the water filtration system in January 2023 constitutes a "prior sale." Under patent law, she must file her patent application by January 2024 (one year from the first sale) to avoid losing her patent rights. If she files, for instance, in March 2024, her patent application would likely be barred due to the prior sale occurring more than one year before the application date.

• Example 2: Offering a Service Based on an Invention

  Mark invents a unique software algorithm that significantly optimizes data processing. Before filing a patent, he approaches several tech companies and offers to license his algorithm to them for commercial use, providing detailed demonstrations and pricing proposals in June 2022.

  How it illustrates "prior sale": Mark's offers to license his algorithm to multiple companies, accompanied by commercial terms, would be considered an "offer of sale" under the concept of prior sale. Even if no licenses were immediately signed, the *offer* itself triggers the one-year clock. He would need to file his patent application by June 2023 to preserve his patentability.

• Example 3: Public Display and Pre-orders at a Trade Show

  A startup, "BioTech Innovations," develops a groundbreaking diagnostic tool for a specific medical condition. At a major industry trade show in October 2023, they publicly display the device, demonstrate its functionality, and accept pre-orders from hospitals and clinics, stating a delivery date and price. They have not yet filed a patent application.

  How it illustrates "prior sale": BioTech Innovations' actions at the trade show – publicly displaying the device, demonstrating it, and accepting pre-orders with commercial terms – collectively represent a "prior sale" or "offer for sale." This public commercial activity starts the one-year grace period. They must file their patent application by October 2024 to avoid the risk of their patent being invalidated due to this prior commercialization.