Thursday, June 25, 2009

Contract Conveying the Right to "Possess and Use" the Infringing Device Constitutes an "Offer to Sell"

Defendant's motion to dismiss for failure to state a claim was denied in part. "The amended complaints allege a contract between [a third party] and [defendant], under which the [third party] will possess and use the [product] for five years. Under the facts alleged, [defendant's] contract with [the third party] resembles a license or rental agreement under which possession is transferred for an extended period to a licensee or lessee who will use the product. . . . The facts alleged make the existence of an 'offer to sell' plausible and preclude dismissal."

Transocean Offshore Deepwater Drilling, Inc. v. Stena Drilling Ltd. et al, 4-08-cv-03287
(TXSD June 22, 2009, Memorandum & Opinion) (Rosenthal, J.)

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