Ripple Effects in the Law: The Broadening Meaning of an Offer to Sell in Patent Law

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.

Details

Publisher:
Stanford University Stanford, California
Citation(s):
  • 17 Stan. Tech. L. Rev. 549 (2014)
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