eBay Listing Is Not eBay’s Offer to Sell​

The court granted defendant's motion for summary judgment that it did not directly infringe plaintiff's bee trap patent because defendant's online marketplace listing was not defendant's offer to sell within the meaning of 35 U.S.C. § 271(a). "[Defendant's] website contained descriptions of the allegedly infringing products and a price at which the items could be obtained. As [plaintiff] observes, [defendant] tells users that bidding on a product creates a contract that obligates the bidder to purchase the product. . . . [Defendant] explicitly identifies a 'seller,' rather than a 'supplier,' on each listing, and no evidence is in the record that users pay [defendant] rather than the seller. . . . [T]he context of an exchange on [defendant's online marketplace website] demonstrates that no reasonable consumer could conclude that by bidding on [a] listing, he was accepting an offer from [defendant] itself. [Defendant's] terms of service explicitly advise users that [defendant] is not making an offer through a listing, and . . . [defendant] lacks title and possession of the items listed."

Blazer d/b/a Carpenter Bee Solutions v. eBay Inc., 1-15-cv-01059 (ALND March 20, 2017, Order) (Bowdre, USDJ)