Is merely offering to sell a patent application considered an offer for sale under patent law?

In the context of patent law, merely offering to sell a patent application does not constitute an offer for sale unless there is an embodiment of the invention that is part of that offer. The rationale behind this is rooted in the concept of patent eligibility and the requirement for a concrete product or process that embodies the claimed invention.

When assessing what constitutes an "offer for sale," the law requires that there be something tangible that signifies an actual product or application of the invention being offered, rather than just the rights associated with that patent application. This aligns with the principle that patentable inventions must be more than just theoretical ideas; there needs to be a practical application. If a party is only offering the rights to an application without a corresponding product or detailed description indicating how the invention is realized, then it fails to meet the criteria for an offer for sale under patent law.

In summary, the absence of an embodiment means that the offer lacks the necessary characteristics to qualify as an offer for sale, as it does not provide a clear opportunity to evaluate what the invention entails or how it can be utilized.