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    Secret sales, posters and pushes to GitHub can all start the clock

    Public accessibility decides what counts as a printed publication, but a sale can count even if the public learns nothing.

    Lesson 4 of 8 · 5 min

    A line drawing of a clockwork escapement wheel and pendulum above a block of black obsidian

    Two tests ask different questions about what counts against you. In our judgment, the safe habit is to file before you launch, post, present or take orders.

    On sale: the public need not learn anything

    The on-sale bar treats a commercial sale as prior art, the earlier material that can block a patent. Pfaff sets two conditions: a commercial offer for sale, and an invention ready for patenting, which drawings alone can satisfy, according to the USPTO's examiner handbook, the Manual of Patent Examining Procedure (MPEP § 2133.03). A sale to a third party bound to confidentiality can still be prior art (Helsinn). A rejected offer can still bar a patent, while assigning patent rights is not a sale of the invention (MPEP § 2133.03(b)).

    Printed publication: could the public reach it?

    Public accessibility is the touchstone, indexing is one factor, and Wayback captures are prima facie evidence, meaning enough to stand unless rebutted (MPEP § 2128). In Klopfenstein, a poster displayed for about three days was a printed publication, and oral talks and trade-show demos can also qualify (MPEP § 2128.01). Theses, posters and web postings are "otherwise available" (MPEP § 2152.02(e)).

    Modern situations

    The scenarios below apply those general tests with the help of commentary. They are not court rulings on these facts.

    • Crowdfunding. Commentators treat pre-sales as offers (IP Law Group; National Law Review).
    • Preprints. One commentator says these count like journal articles and generally cannot be withdrawn (BioNow).
    • GitHub. In Kaspersky v. Open Text, an undated screenshot failed as proof of accessibility, according to one law firm. That is a challenger's proof problem, not a safe harbor (Jones Day). In our judgment, treat a push to a public repository as disclosure that day.
    • Pitch decks. In our judgment, a deck seeking investment is a publication risk more than a sale, since selling rights is not selling the invention (MPEP § 2133.03(b)). A deck quoting price and terms to a customer may be an offer. Send decks under a nondisclosure agreement (NDA) and keep non-enabling versions for wider circulation.

    Timeless wisdom

    The public can be very small. Egbert held one user can be the public where the inventor gave the device away "without limitation or restriction, or injunction of secrecy" (Egbert). City of Elizabeth protects genuine experiments under the inventor's surveillance (Elizabeth), and record-keeping, inventor control and payment are listed factors (MPEP § 2133.03(e)). That MPEP section predates the America Invents Act (AIA). We have not verified that the experimental-use doctrine carries over unchanged to AIA "public use", so ask a patent attorney before relying on it.

    What's current

    As of November 6, 2026

    NDAs help against publication but do not answer a sale in the US (MPEP § 2152.02(d)). In Europe, an express or tacit secrecy agreement defeats public availability, and an ordinary commercial transaction cuts against a tacit one (EPO Guidelines 2026, G-IV 7.2.2).

    From January 1, 2026, Rules 33 and 64 of the Patent Cooperation Treaty (PCT) include non-written disclosures in relevant prior art for search and preliminary examination, so oral and use disclosures are now a search-stage risk (PCT Newsletter compilation).

    We found no Federal Circuit decision on crowdfunding, GitHub commits or arXiv and bioRxiv posts, so those scenarios remain applications of general tests.

    Key takeaways

    • A sale can count against you even if it is confidential and the public learns nothing.
    • A printed publication turns on public accessibility, and a three-day poster has qualified.
    • An NDA helps against publication but does not answer a sale in the US.
    • File before you launch, post, present or take orders.

    Check your understanding

    1. Before filing, you sign a confidential supply contract to sell your finished invention to one customer. Does the NDA remove the on-sale risk in the US?
    2. Why might a poster shown at a conference for about three days count as a printed publication?

    Sources

    1. MPEP § 2133.03
    2. Helsinn Healthcare v. Teva
    3. MPEP § 2128
    4. MPEP § 2152
    5. IP Law Group on crowdfunding pre-sales
    6. National Law Review on crowdfunding and IP
    7. BioNow on preprints and IP protection
    8. Jones Day on Kaspersky v. Open Text
    9. Egbert v. Lippmann
    10. City of Elizabeth v. Pavement Co.
    11. EPO Guidelines 2026, G-IV 7.2.2
    12. PCT Newsletter compilation (2026)

    The Academy is general education, not legal advice, and reading it doesn't create an attorney-client relationship. Patent law and fees change, so check the linked sources and have a registered patent attorney or agent review your situation before you file. Obsidyan sells patent software, including AI drafting tools, so weigh what these lessons say about AI tools with that in mind.

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