Tonight, I recommend Professor Lucas Osborn's Ripple Effects in the Law: The Broadening Meaning of An “Offer To Sell” In Patent Law published in the Stanford Technology Law Review in 2014.
Despite the title, this article is not about the on sale bar. It's about infringing offers that can produce liability. As background, infringement occurs when someone makes, uses, offers to sell, or imports the patented invention during the term in the US without the owner's permission.
Currently, the infringing offer has to meet the contract definition of an offer. I think this is most workable standard in most cases, but the article argues for a broader definition. Here's the abstract: "The law's complexity is such that even apparently minor changes can have numerous 'ripple' effects. This Article examines the ripple effects from a potential broadening of patent law's definition of an infringing 'offer to sell.' Currently, courts limit 'offers' to formal, contract-law offers; but a policy analysis suggests that 'offers' should include advertisements and other promotions, which harm patentees via price erosion. Changing the offer definition to include advertisements and other promotions requires a careful consideration of the effects, including effects on patent litigation, innovation incentives, the extraterritorial reach of U.S. patent law, third-party liability, and Constitutional concerns. This Article performs that analysis and provides specific recommendations for crafting the definition of an infringing 'offer' to sell."
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