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[evolution]

I believe I saw case law indicating that an offering an item for sale on a website was "offering for sale" under 102(b).

Is offering an infringing product on a website an "offer to sell" under 271? 

Guess this leads to a lot of additional questions... would it be an offer to sell each time someone accessed the page with the accused product, person would accessing would have to be in US, etc...

Thanks for your thoughts!

[IntelProp007]

My thoughts.... There is authority that says if the sale contemplated by the offer would constitute infringement, then the offer would constitute infringement. I think offer to sell under 102(b) and offer to sell under 271 involve separate considerations - and should probably be analyzed separately. Seems a web page offer is still a web page offer whether the page is accessed or not. Proof of the existence of the web page offer, for example by accessing the web page, is a different matter. Hope you can find some relevant case law. I would think it would at least be in dictum somewhere.

[evolution]

Surprisingly, I have seen very few offer for sale cases in the website context - and most were mainly dealing w/ personal jurisdiction.

If a website simply existing constitutes an offer, I wonder how damages would be calculated - I was thinking if it was an offer each time someone accessed it, then that would be the number of infringing offers

[Isaac]

If a website simply existing constitutes an offer, I wonder how damages would be calculated - I was thinking if it was an offer each time someone accessed it, then that would be the number of infringing offers

Perhaps, but there are no per infringement statutory damages for patents analogous to the statutory damages for copyright infringement.  Patent infringement damages are either losses suffered by the patent holder or unjust profits collected by the infringer.  If someone accesses the infringer's web page but then decides to purchase elsewhere, there may not be any damages for the patent holder to collect.

[JimIvey]

If a website simply existing constitutes an offer, I wonder how damages would be calculated - I was thinking if it was an offer each time someone accessed it, then that would be the number of infringing offers

To expand on this in view of Isaac's post, I have no idea how you could calculate damages for offers to sell.  If someone goes to the web site and receives the offer to sell through the web site, what are the lost profits (only for exceptional cases) or what is the reasonable royalty? -- i.e., the reasonable royalty for allowing someone to offer sales without actually allowing them to make the sales, that is, for offering only.  Doing no more than merely offering to sell an infringing product without actually selling it would appear to cause no measurable loss.

It's a bit like bankruptcy law after the major overhaul obtained by financial institutions through very generous lobbying.  Yes, it's illegal for them to attempt to collect a debt dismissed during bankruptcy, but the damages are limited to actual damages.  How much money do you lose when you receive a mean phone call from someone to whom you no longer owe anything?  None.  How many of those calls and letters would you collect before you could afford to go through a litigation over the issue?  To answer this, simply divide the cost of litigation by the actual monetary losses of an improper phone call -- i.e., zero.

I can only imagine one sort of activity that might justify some sort of litigation over offers to sell.  Back in about 1994, IBM announced their competitor to Windows 3.11 -- OS/2.  Immediately, Bill Gates announced Windows 95 and added the typical MSFT puffery, something like it will blow OS/2 out of the water.  So, waiting to compare Windows 95 to OS/2, no one bought OS/2 (well, virtually no one).  It was more than a year before Windows 95 became available, even in pre-release beta form.  It might have even been 1996 by that time.  The term given that tactic (announcing things that don't yet exist such that, out of respect for your near monopoly, buyers don't buy competing products) was "vaporware".

It might be that damages for infringement can predate the release date to the extent pre-orders were offered for the loss in sales of OS/2.  I have no idea how you'd determine how many copies of OS/2 were not purchased as a result of the vaporware announcement.

Regards.