Appeal No. 1999-1002
Application No. 08/672,493
1641, 1646-47 (Fed. Cir. 1989). The Supreme Court has held
that the on-sale bar under 35 U.S.C. § 102(b) applies when
(1) the invention at issue had become the “subject of a
commercial offer for sale” more than one year before the
filing of the patent application; and (2) the invention was
ready for patenting. See Paff v. Wells Elec., Inc., 525 U.S.
55, 66 (1998).
The extent of the commercial activity, which constitutes
a 102(b) bar, depends upon the circumstances of the activity,
the basic indicator being the subjective intent of the
inventor to commercially exploit his or her invention as
manifested through objective evidence. Indications of a
subjective intent to commercialize include: preparations of
various contemporaneous “commercial” documents, e.g. orders,
invoices, receipts, delivery schedules; preparation of price
lists; display of samples to prospective customers;
demonstration models or prototypes; use of an invention where
an admission fee is charged and advertising in publicity
releases, brochures, and various periodicals. The examiner has
not indicated that the appellants have participated in any of
the above activities.
In addition, the receipt of revenue is not dispositive of
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