Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It only takes a minute to sign up.
Sign up to join this community
Let's say that company A announces a product that infringes a patent of company B. Company A makes marketing actions (promotion, future customer acquisition and so on) but doesn't sell yet the product to consumers. Those actions cause damages to company B.
Then company A changes slightly the product to escape the patent scope and starts selling the product leveraging the benefits of the marketing actions.
Is there a title US code under which company B can sue company A?
Direct patent infringement includes making, selling, importing and using - so far they are ok - and offering for sale, not ok.
From one law firms blog talking about a specific case -
The Patent Law lists 'offering to sell' as an act of patent infringement in order to give patentees the right to prevent other parties from offering their goods for sale and not merely act once such goods have been sold. Patentees will benefit from protecting their legitimate rights and interests more promptly and efficiently. Mediking's business scope and its affiliated production enterprise proves that it is a drug production company. According to business practice, publicising an accused product by introducing it on an official website obviously promotes the product, thus constituting an offer of sale. By listing the products and their status on the exhibition boards and brochures, Mediking ultimately publicised and promoted the products.
I imagine there could be restraint of trade issues if they had large market share.
Presuming that Company A manages to steer clear of patent infringement, for e.g., 15 U.S.C. § 43(a)(3)(B), provides remedies for unfair methods and practices in commerce.
If, for example, Company A was never intended to actually put any product in the stream of commerce that it previously marketed, and the follow up product does not provide the benefits of the patented invention of Company B, that is arguably fraud, an unfair method or practice. (Company B would have standing, for example, because deceiving consumers and fraudulently selling them a product that was marketed as the patentee’s invention arguably affects commerce in reducing the pool of potential buyers from Company B; other fact patterns may have similar outcomes, too)
Also, many if not most States also have their own false advertising and unfair business practices acts providing slightly different criteria across the country so a suit may include causes of action based on federal and/or one or more states laws in this regard.
