(Assuming I have a very novel invention that has been ready for patenting (for months or more), in the US.)

Suppose I write a press release or conduct an auction (online/physical) or tweet or even blog (or even write on StackExchange/Quora/etc) or even write on Pastebin.com (Shrib.com?), an "offer for sale of the invention", perhaps:

I have a novel idea related to compression that has no prior art whatsoever. Selling for US 70 trillion dollars. Any takers?

..or maybe:

I have a novel idea related to encryption that has no prior art whatsoever. Selling for US 70 dollars. Any takers?

  1. Am I then required to file US patent application within one year (give-or-take) or lose the chance to win it forever? Even if no one ever replied?

  2. What if instead I provide more descriptions/elaborations, but always short of actually leaking any part that is important?

  3. Also and separately, what if instead I do not offer to sell the idea but merely offer to lend the document (such that the payer after signing a non-disclosure can read the idea for enjoyment of soul but not do anything about it)?

1 Answer 1


No - there is an important distinction between offering the invented device for sale and the rights to the invention. Your scenario 1 does not trigger anything but the quoted story does.

Something called the on-sale bar says the clock on the grace period is started (among other triggers) by offering an instance of the invented thing for sale even without disclosing details of the invention. Offering to sell the rights to a patent application or issued patent is not selling an invented item.

In your hypo there isn’t even an application pending so you would be offering to assign your rights to an invention that had not yet been filed. That is not a commercial offer to sell that triggers the on-sale bar.

In the 2. case your partial disclosure might not break novelty but could be used as prior art (after a year) as part of an obviousness argument combined with other prior art and could hurt you.

Separately note that you buying a prototype from a prototype maker (from your drawings) with NDA is a sale even though you are the buyer! If you provide/purchased raw materials and pay them for their labor (manufacturing services) to fabricate it then it wasn’t a sale.

The details of the on-sale bar changed somewhat after the AIA https://patentlyo.com/patent/2022/05/require-consideration-necessarily.html

In other countries nothing breaks novelty as long as the invention is not disclosed.

Allowing people to read about an invention under an understanding of confidentiality (or NDA) where there is no offer for sale of an invented item is ok in the US. (3)

This type of question but with more twists often appears on the patent bar exam.

  • 1
    I'm a bit confused. From your link I see: “On sale” is defined by the courts as a “commercial offer for sale” of an embodiment that takes place once the invention is “ready for patenting.”. If someone wants to sell the rights to a future patent, they aren't selling an embodiment. They haven't sold the actual device or even disclosed the actual invention.
    – Eric S
    Oct 19, 2022 at 18:57
  • You are correct- I need to edit my answer drastically. I would have flunked the bar exam question !
    – George White
    Oct 19, 2022 at 20:10
  • 1
    I think this is the first time I've pointed out a flaw in one of your answers. Truly a magical moment for me.
    – Eric S
    Oct 20, 2022 at 3:10
  • And you have spotted dozens of weird typos. Thanks
    – George White
    Oct 20, 2022 at 4:22
  • @GeorgeWhite, If it is NNN, if I understand correctly, the original answer being YYN was outright wrong?
    – Pacerier
    Oct 20, 2022 at 13:38

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