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.”
About IP SpotlightIP Spotlight provides news and practice tips relating to the legal and business aspects of intellectual property and other intangible assets. Topics include licensing, due diligence, acquisition, compliance and risk management associated with patents, trademarks, copyrights and trade secrets. IP Spotlight is published by Jim Singer of Fox Rothschild LLP.
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Jim Singer is a partner with the law firm of Fox Rothschild LLP, where he focuses on intellectual property acquisition, protection, enforcement and licensing. For more details and contact information, select the "About the Author" link below.
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