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Application Of On-Sale Bar Of Patented Method Requires Completion Of All Steps Prior To Critical Date

Client Alert | 1 min read | 12.20.06

In Plumtree Software, Inc. v. Datamize, LLC (No. 06-1017; Dec. 18, 2006), the Federal Circuit vacates summary judgment of invalidity of Datamize's patents and remands for a determination of whether all of the steps of the patented method were actually performed before the critical date for an on-sale bar. The patented invention is for a method and computer program for creating other computer programs, which could be used to create an interactive kiosk system.

The patentee met with representatives of Ski Industry of America (SIA) before the critical date and offered to create a kiosk for an SIA tradeshow. Subsequently, and prior to the critical date, SIA sent a letter to the patentee confirming the patentee's participation in the trade show. The district court decided that an on-sale bar was triggered, because there was an agreement before the critical date that the patentee would provide a software/hardware package necessary to produce the interactive touch-screen information center as presented to SIA.

The Federal Circuit vacates the summary judgment, because the record does not clearly indicate (A) whether the agreement required use of the patented method, or (B) whether all of the steps of the patented method were performed before the critical date. The patentee began creating the kiosk system using the patented method prior to the critical date, but the kiosk system was not finished until after the critical date. Thus, the Federal Circuit remands for a determination of whether all of the steps of the patented method were performed prior to the critical date.

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