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Are pre-sales like crowd funding considered an actual sale which would start the clock on the one year grace period?

Specifically I'm thinking about crowd funding websites like kickstarter.com where funding for a project can be acquired by pre-selling units or licences etc without fully disclosing or delivering on the invention.

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Interesting question. “Only an offer which rises to the level of a commercial offer for sale, one which the other party could make into a binding contract by simple acceptance (assuming consideration), constitutes an offer for sale under [35 USC] §102(b).” Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041,1048 (Fed. Cir. 2001). However, “[i]t is not necessary that a sale be consummated for the bar to operate.” Buildex v. Kason Indus.,Inc., 849 F.2d 1461, 1463-64 (Fed. Cir. 1988) (citations omitted). That is, delivery of the invention is not necessary to bar patentability. Depending on the amount of disclosure at the crowd-funding site, the disclosure itself might start the 1 year clock. If the public can figure out how to make and use the invention from such disclosure, the clock is ticking.

  • To use KFC as an abstract example: if I were to crowd fund a new type of fried chicken restaurant based on a new "Kernels Secret Recipe", which was yet to be developed and or verified, it would be possible to acquire funding yet not disclose the recipe. Everyone would understand the service would be like KFC but presumably better in some undisclosed way via the secret recipe. There would be no way for the public to reverse engineer the recipe in this case, so would this then not start the clock ticking? Also, would the sale actually complete upon delivery, when the chicken is "tasted"? – user2908444 Jan 23 '15 at 15:57
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I believe that the answer is yes and that you should consider that an offer for sale.

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