Post-Pfaff On-Sale Bar Decisions

From time to time in the FedCirBlog, I want to be able to provide helpful lists of recent Fed Cir decisions on particular topics, along with parentheticals that briefly describe the relevant holding of each decision. These lists help me find relevant law quickly, and save my clients money because they do not need to pay an associate to look up basic law. I hope to be able to provide more down the road. This first list is every post-Pfaff decision by the Fed Cir that analyzes the on-sale bar:

Dow Chem. Co. v. Mee Indus., Inc., 341 F.3d 1370, 68 USPQ2d 1176 (Fed. Cir. Sept. 5, 2003) (customer specification reviewed to determine what was on-sale, where the offer for sale was a response to the specification)

Vernon F. Minton v. National Ass'n of Securities Dealers, Inc., 336 F.3d 1373, 67 USPQ2d 1614 (Fed. Cir. July 29, 2003) (opposite outcome as in In re Kollar, where fully operating program was leased by the critical date)

In re Kollar, 286 F.3d 1326, 62 USPQ2d 1425 (Fed. Cir. Apr. 11, 2002) (patent right to process was [merely] licensed, [and was not] this does not make process itself "on sale")

Lacks Indus., Inc. v. McKechnie Vehicle Components USA, Inc., 322 F.3d 1335, 66 USPQ2d 1083 (Fed. Cir. Mar. 13, 2003) (industry customs (re selling and offers for sale) are relevant to the on-sale bar inquiry)

Minnesota Mining & Mfg. Co. v. Chemque, Inc., 303 F.3d 1294, 64 USPQ2d 1270 (Fed. Cir. Aug. 30, 2002) (Providing potential customers with samples of a product, without providing any other terms, is not a commercial offer for sale, because the recipient could not act in such a way that would create a contract.")

Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 63 USPQ2d 1769 (Fed. Cir. Aug. 1, 2002) (experimental use exception to on-sale bar looks to whether the primary purpose at the time of the sale was to conduct experimentation, not merely whether the product was undergoing testing)

New Railhead Mfg., L.L.C. v. Vermeer Mfg. Co., 298 F.3d 1290, 63 USPQ2d 1843 (Fed. Cir. July 30, 2002) (dissent opines that there should be no on-sale bar when inventor gives product to a third-party (and makes no money), and the third party uses the product to make money)

Netscape Communications Corp. v. Konrad, 295 F.3d 1315, 63 USPQ2d 1580 (Fed. Cir. July 9, 2002) (For on-sale bar, transfer between related entities is excused only if they are controlled by a common entity)

Dana Corp. v. American Axle & Mfg., Inc., 279 F.3d 1609, 61 USPQ2d 1609 (Fed. Cir. Feb. 12, 2002) (just says that district court should have conducted an explicit claim construction before invalidating claims under on-sale bar)

EZ Dock, Inc. v. Schafer Sys., Inc., 276 F.3d 1347, 61 USPQ2d 1289 (Fed. Cir. Jan. 15, 2002) (multi-factored analysis for experimental use survives Pfaff).

Linear Technology Corp. v. Micrel, Inc., 275 F.3d 1040, 61 USPQ2d 1225 (Fed. Cir. Dec. 28, 2001), cert. filed, __ U.S. ___ (2002) (No. 02-39) (promotional activities that occur before a company is able to book sales cannot be an "offer for sale"; test is made by looking for "common denominator" in UCC law)

Space Sys./Loral, Inc. v. Lockheed Martin Corp., 271 F.3d 1076, 60 USPQ2d 1861 (Fed. Cir. Nov. 13, 2001) (conception of invention does not alone make the invention “ready for patenting”)

Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353, 60 USPQ2d 1537 (Fed. Cir. Oct. 26, 2001) (there is no "supplier exception" to the on-sale bar)

Scaltech, Inc. v. Retec/Tetra, L.L.C., 270 F.3d 1321, 60 USPQ2d 1687 (Fed. Cir. Oct. 23, 2001) (on-sale bar begins ticking at reduction to practice, even if invention has not yet been conceived)

Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041, 59 USPQ2d 1121 (Fed. Cir. June 15, 2001) (on-sale bar "offer for sale" is measured by general contract law (as influenced by the UCC))

Robotic Vision Sys., Inc. v. View Eng'g, Inc., 249 F.3d 1307, 58 USPQ2d 1723 (Fed. Cir. May 7, 2001) (enabling explanation to co-worker provided evidence that invention was "ready for patenting" for on-sale bar)

Crystal Semiconductor Corp. v. Tritech Microelectronics Int'l, Inc., 246 F.3d 1336, 57 USPQ2d 1953 (Fed. Cir. Mar. 7, 2001) (JMOL of validity not appropriate when disputed facts indicated that patentee may have booked sales without an experimental purpose before the critical date)

Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 57 USPQ2d 1699 (Fed. Cir. Feb. 7, 2001) (genuine issues regarding experimental use prevented summary judgment that on-sale bar applied)

Lampi Corp. v. American Power Prods., Inc., 228 F.3d 1365, 56 USPQ2d 1445 (Fed. Cir. Sept. 28, 2000) (declarations during trademark prosecution regarding a first sale date did not create judicial estoppel on the on-sale bar issue)

Zacharin v. United States, 213 F.3d 1366, 55 USPQ2d 1047 (Fed. Cir. June 13, 2000) (government contractor's acceptance of contract triggers the on-sale bar)

STX LLC v. Brine, Inc., 211 F.3d 588, 54 USPQ2d 1347 (Fed. Cir. Apr. 13, 2000) (patentee faces on-sale bar even though preferred embodiment was not perfected; preamble is not claim limitation)

Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 54 USPQ2d 1299 (Fed. Cir. Apr. 7, 2000) (invention was not "ready for patenting" at trade show because brochure distributed at show was not enabling [but couldn't it be prior art for what it enabled? see Beckman Instrument] and there was no evidence that a tool meeting the claim limitations had been reduced to practice)

Vanmoor v. Wal-Mart Stores, Inc., 201 F.3d 1363, 53 USPQ2d 1377 (Fed. Cir. Jan. 10, 2000) (invention can be ready for patenting under Pfaff if it is reduced to practice or if the inventor has prepared documents sufficiently specific to enable a skilled artisan to practice the invention)

Tec Air, Inc. v. Denso Mfg. Mach. Inc., 192 F.3d 1353, 52 USPQ2d 1294 (Fed. Cir. Sept. 30, 1999) (disputed facts existed as to whether offer for sale (which was ultimately filled by the patented invention) was for the prior art design or for the patented invention, since patentee changed its process after the offer and had enough inventory of the prior art blades at the time of the offer to fill the offer)

SunTiger, Inc. v. Scientific Research Funding Group and Blublocker Corp., 185 F.3d 878, 51 USPQ2d 1811 (Fed. Cir. Aug. 19, 1999) (no summary judgment on on-sale bar because fact issue existed regarding whether patentee could gain priority from parent application that pre-dated the offer for sale)

Oney v. Ratliff, 182 F.3d 893, 51 USPQ2d 1697 (Fed. Cir. Aug. 12, 1999) (defendant's evidence regarding a pre-critical date offer was undercut (impeached), so questions of fact existed to preclude summary judgment)

Brasseler U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d 888, 51 USPQ2d 1470 (Fed. Cir. July 9, 1999) (sale from one company to another company owned by the inventors was an offer for sale, even though second company made minor modifications to product before making the "real" sale)

Abbott Labs. v. Geneva Pharmaceuticals, Inc., 182 F.3d 1315, 51 USPQ2d 1307 (Fed. Cir. July 1, 1999) (offer for sale triggers on-sale bar even if buyer did not know it was getting the patent invention)

Scaltech, Inc. v. Retec/Tetra, L.L.C., 178 F.3d 1378, 51 USPQ2d 1055 (Fed. Cir. June 4, 1999) (no summary judgment of on-sale bar because evidence did not make clear that an embodiment of the claimed invention was offered for sale)

Weatherchem Corp. v. J.L. Clark, Inc., 163 F.3d 1326, 49 USPQ2d 1001 (Fed. Cir. Dec. 7, 1998) (on-sale bar applies to offer for sale where invention was adequately complete to be patented, even though inventor was still working out some wrinkles)

C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 48 USPQ2d 1225 (Fed. Cir. Sept. 30, 1998) (Chief Judge Mayer finds offer for sale in letter sent to doctor, even though device had not received FDA approval, had not gone through trials, and the design had not been finalized; Judge Bryson finds an offer for sale in activities that the patentee argued were an experimental use; Judge Neman dissented, noting that the former offer was of a product still in development, while the latter was more of an “informational exchange of price information” than a sale).

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