A straightforward reading of the existing on-sale bar law suggests that companies and inventors, particularly in the software industry, may be unwittingly putting their inventions on sale by agreeing to deliver future improvements or versions of their product to their customers.
On-Sale Bar By Upgrade? An Invention May Be Put On-Sale By a Contract Made Before the Date of Invention
A straightforward reading of the existing on-sale bar law suggests that companies and inventors, particularly in the software industry, may be unwittingly putting their inventions on sale by agreeing to deliver future improvements or versions of their product to their customers. This is a consequence of the initially counterintuitive principle that an invention may be put on sale by a contract or offer made before the invention even exists. This principle will often apply in the context of 'upgrade' contracts, where a seller contracts, at the time of a sale, to provide future 'upgrades' to a product. In that situation, the seller's pre-existing obligation to provide the invention as an 'upgrade' can put the invention on sale, even though the obligation arose before the invention was conceived.
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Nicholas A. BrownThis premium content is locked for LawJournalNewsletters subscribers only
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