The 'On-Sale' Bar After <i>Pfaff</i>

Pfaff v. Wells Elecs., Inc., 525 U.S. 55 (1998) is widely recognized as a milestone in the annals of patent law for providing direction as to how courts are to analyze and apply the statutory “on-sale” bar to the granting of patents. See 35 USC ' 102(b) (“a person shall be entitled to a patent unless ' (b) the invention was ' on sale in this country, more than one year prior to the date of the application for patent in the United States”). Prior to Pfaff, courts used the “totality of the circumstances” test in determining whether an invention was on sale under ' 102(b). This open-ended standard provided little guidance, however, with the result that courts did not apply the test uniformly. Thus, for example, while some courts held that an invention could not be on sale under ' 102(b) unless the invention had been “reduced to practice,” others did not. Pfaff provided a much needed, clear, and uniform test for lower courts to apply. This article explores how the Federal Circuit has applied Pfaff in more recent cases.