Milo & Gabby, LLC et al v. Amazon.com, Inc., 2-13-cv-01932 (WAWD November 3, 2015, Order) (Martinez, J.)
Thursday, November 5, 2015
Amazon Not Liable for Infringement of Third Party Products Offered for Sale Via Amazon’s Website
Following an advisory jury trial to answer underlying factual questions, the court found that Amazon did not offer to sell the accused products via its website and was not liable for infringement. "[T]his Court is not aware of any Federal Circuit case directly addressing the central issue before this Court – that is, who made the alleged 'offer to sell.'. . . [T]he Court can only conclude that Amazon did not offer to sell the alleged infringing products because there was no manifestation of the willingness of Amazon to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. However, the Court is troubled by its conclusion and the impact it may have on the many small retail sellers in circumstances similar to the Plaintiffs. There is no doubt that we now live in a time where the law lags behind technology. This case illustrates that point. . . . Amazon enables and fosters a market place reaching millions of customers, where anyone can sell anything, while at the same time taking little responsibility for 'offering to sell' or 'selling' the products. Indeed, under the current case law, Amazon has been able to disavow itself from any responsibility for 'offering to sell' the products at all. . . . [T]he purpose of 'adding "offer [ ] to sell" to section 271(a) was to prevent . . . generating interest in a potential infringing product to the commercial detriment of the rightful patentee.' In this instance, the Court is not convinced that such purpose has been fulfilled. However, that is a subject which must be addressed to Congress and not the courts."