The Illusion of “Offer To Sell” Patent Infringement: When an Offer Is an Offer but Is Not an Offer

Abstract

INTRODUCTION 1283 I. EVALUATING SPECIFIC PERSONAL JURISDICTION IN “OFFER TO SELL” PATENT INFRINGEMENT CASES 1289 A. The Federal Circuit Test for Personal Jurisdiction in Patent Cases .. 1290 B. The Federal Circuit’s Application of the Akro Test to “Offer to Sell” Patent Infringement Cases 1294 II. INTERPRETING “OFFER TO SELL” INFRINGEMENT IN THE CONTEXT OF THE PATENT STATUTES AND CONTRACT LAW 1300 A. The Addition of “Offer To Sell” as an Independent Statutory Grant to the Patentee 1300 B. Distinguishing “Offer To Sell” (Infringement) from “Offer” (Contract Law) and “On Sale” (Patentability Bar) 1302 C. The Federal Circuit’s Interpretation of “Offer To Sell” 1306 III. KEEPING THE SUBSTANTIVE “OFFER TO SELL” INFRINGEMENT ANALYSIS DISTINCT FROM THE PERSONAL JURISDICTION DETERMINATION 1310 A. Mixed Decisions in the District Courts 1312 B. Effective “Offer to Sell” Infringement Liability Requires a Different Analysis 1315 C. A Possible Solution 1319 CONCLUSION 1321