In Plumtree Software, Inc. v. Datamize, LLC, the Federal Circuit Court of Appeals revisited the issue of determining when an invention is on sale within the meaning of 35 U.S.C. 102(b). A claimed invention is considered to be on sale under § 102(b) if the invention is sold or offered for sale more than one year before the filing date of the patent application. If the applicant files a patent application after this bar date, the invention is then considered donated to the public domain. The Federal Circuit stated that the purpose of the on sale bar is to "preclude attempts by the inventor or his assignee to profit from commercial use of an invention more than a year before an application for [a] patent is filed."

While discussing the on sale bar the Federal Circuit reviewed the two part test established by the Supreme Court in Pfaff v. Wells Electronics, Inc., 525 U.S. 55 (1998). The Federal Circuit reiterated that "first, the product must be the subject of a commercial sale or offer for sale" and that "second, the invention must be ready for patenting." The Federal Circuit went further to then state that there are two alternative methods of showing that a product has been a subject of a commercial sale. The first method is to show that the patentee made a commercial offer to perform the patented method before the critical bar date (even if the performance is to occur after the critical date). The second method is for the alleged infringer to demonstrate that before the critical date the patentee actually performed the patented method for a promise of future compensation.

In deciding the specific case at hand, the Federal Circuit remanded the case to the district court for further litigation as the Federal Circuit found the established record was insufficient to determine whether the patented process was sold or offered for sale before the critical date.

To read the full text of the decision, click here.