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What Constitutes 'A Sale' and 'an Offer to Sell'?

By Veronica Mullally Munoz and Andrew J. Cochran

In its recent opinion, Halo Electronics, Inc. v. Pulse Electronics, Inc., 2:07-cv-00331 (Fed. Cir. Oct. 22, 2014), the Federal Circuit addressed what activity constitutes a sale or an offer for sale for purposes of 35 U.S.C. '271 and, in an important concurrence, Circuit Judge O'Malley provides a provocative analysis of the standard for enhanced damages under '284 in parallel to recent Supreme Court edicts on the standard for attorneys' fees under '285 and calls upon the Federal Circuit to reevaluate the standard for willfulness.

In Nov. 2012, a federal jury in Nevada awarded Halo $1.5 million for infringement of three of Halo's patents, each entitled 'Electronic Surface Mount Package.' Halo claimed Pulse infringed by making, using or selling surface mount transformers or devices that have an electronic surface mount package. In May 2013, the trial judge ruled on the legal determinations of Pulse's obviousness defense and the objective element of Halo's willfulness claim and entered judgment in favor of Halo, except on the issue of willfulness.

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