Tuesday, October 29, 2013

Giving App Away for Free May Constitute Infringing Sale

The court denied without prejudice defendants' motion for summary judgment of no contributory infringement of plaintiff's mobile device application patents. "[Defendant] moved for entry of judgment as a matter of law . . . on the ground that it 'provides its mobile applications as well as access to its mobile website free of charge' making it impossible for [it] to violate 35 U.S.C. § 271(c). . . . Because there are currently material facts in dispute on this key question of whether or not [defendant] receives consideration from its customers in exchange for the Apps and website, the motion must be denied. . . . [Plaintiff] cites to various exhibits that purportedly demonstrate that [defendant] provides the Apps to its customers in exchange for consideration, such as fees and access to deposited funds, and requirements that customers have accounts and enter into contracts. . . . [T]he fact that [defendant] might, in some situations, give the Apps away for free does not mean that [it] cannot, in other situations, be selling the Apps within the meaning of § 271(c). These are all legal issues that require the benefit of full discovery and thorough briefing based on a universe of known facts."

Maxim Integrated Products, Inc., Patent Litigation, 2-12-mc-00244 (PAWD October 25, 2013, Order) (Conti, J.)

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