The court denied plaintiffs' motion for summary judgment of noninfringement of defendants' stun gun design patents and rejected plaintiff's argument that listings on its online marketplace were not offers-for-sale by plaintiff that could trigger direct infringement liability. "Determining whether there has been an offer-for-sale in the context of patent law requires the application of traditional contract law principles to the particular case. . . . There is no controlling decision as to whether an online marketplace, such as [plaintiff's] websites, can be liable for direct patent infringement. Under an application of traditional contract law, the relevant inquiry is whether a person shopping on [plaintiff's] websites would have reasonably believed that [plaintiff], and not third-party sellers, was the seller with title or possession of a product who could have entered into a contract to transfer title or possession. There is a factual dispute as to whether a reasonable buyer going on [plaintiff's website] would have believed that [plaintiff] itself was making an offer to sell the allegedly infringing products. The name of the 'supplier' is only in small font. Moreover, 'supplier' may be interpreted to mean manufacturer but that [plaintiff] is owner of the products."
Alibaba.com Hong Kong Limited, et. al. v. P.S. Products Inc., et. al., 3-10-cv-04457 (CAND May 11, 2012, Order) (Alsup, J.)