Also known as: offers for sale · offered for sale · offering for sale · offer to sell
Written by attorneys · grounded in primary & secondary sources — see below
A proposal by the owner of property to transfer an interest in exchange for consideration from a third party.
Orson Ochoa owns a parcel and grants his neighbor a right of first refusal in a donative transfer. When Orson receives a bona fide offer from a third party at a fair price and gives the neighbor thirty days to match it, the neighbor's right activates because the terms are reasonable. The neighbor exercises the right and acquires the parcel on the same terms.
Onyx Pharmaceuticals holds a patent on a drug compound. It learns that Oasis Resorts has sent letters to potential buyers quoting a price and delivery date for the compound before the patent expires. The letters constitute an offer for sale that infringes the patent even though no actual sale occurs.
Select any source to read its text and confirm it supports the definition.
Oakridge Manufacturing makes and markets a device. After the court construes the patent claims, the marketing materials are found to propose a sale of a device that falls within those claims. The proposal qualifies as an infringing offer for sale regardless of whether any units change hands.
The offer activates the right when the owner proposes to transfer the interest to a third party in exchange for consideration and the right's terms are reasonable as to price and exercise period. If those conditions are met the right is not treated as a restraint on alienation.
No. In patent infringement an offer for sale can give rise to liability even if the contemplated sale never occurs, provided the offer is made before patent expiration.
If the designated person must pay a reasonable price and receives a reasonable period to decide, the right is not a disabling, forfeiture, or promissory restraint. Unreasonable terms convert the right into a prohibited restraint judged under separate rules.
An offer for sale manifests willingness to be bound on stated terms. A conditional or exploratory response operates as a counteroffer or rejection that terminates the power of acceptance rather than constituting an acceptance.
…March 21, 2017—Decided May 30, 2017 A United States patent entitles the patent holder to “exclude others from making, using, offering for sale, or selling [its] invention throughout the United States or importing the invention into the United States.” 35 U. S. C. §154(a). Whoever engages in one of these acts “without authority”…