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.
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.
I believe that the answer is yes and that you should consider that an offer for sale.
