Tuesday, December 8, 2009

Determination Of Commercial Offer For On-Sale Bar Does Not Include Course of Dealing or Industry Practice

The court granted Honeywell's motion for summary judgment of invalidity based on the on-sale bar. In doing so, the court rejected Honeywell's argument that its Proposal submitted in response to Boeing's Request for Proposal was not a commercial offer even though it "express[ed] firm and definite commitments regarding, among other things, price and delivery [terms]." "Honeywell contends that this detailed proposal was not an offer, based on the 'longstanding business relationship between Honeywell and Boeing, as well as the industry custom and norm in the context of the proposal phase of a complex, developmental project' . . . In the Court's view, however, the fact that further negotiations might arise, or even be expected, does not preclude the . . . Proposal from being an invalidating offer where, as here, the . . . Proposal contained the essential terms of an offer and Honeywell manifested its intent to make an offer to Boeing."

Honeywell Intl Inc., et al. v. Audiovox Corp., et al.,
1-04-cv-01337 (DED December 4, 2009, Memorandum Opinion) (Farnan, J.)

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