Court: Article announcing that new product will be available in the future does not trigger on-sale bar to patentability

A recent decision from the U.S. District Court for the Northern District of California considered whether a magazine article about an upcoming product could trigger the “on-sale” bar to patentability.  In Speedtrack, Inc. v. Wal-Mart.com USA, LLC (No. 4-06-cv-07336, Feb. 22, 2012), the court considered a magazine article that discussed the patented software.  The article was published more than one year before the filing date of the patent, but the article did not discuss details of the product or indicate that the product was available for sale.  On this basis, the court held that the magazine article did not trigger the Patent Act’s “on-sale” bar, stating:  “Reasonably construed, this fails to satisfy the ‘clear and convincing’ evidence that defendants would need in order to demonstrate a ‘definite offer to sell the product,’ as such an offer would be understood in contractual terms.”

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