Murky International Waters In Patent Law’s ‘Offer To Sell’

A foreign manufacturer exhibits at a trade show in the United States where offers to sell its goods are contemplated. On the one hand, if offers to sell infringing goods are made at the trade show, one might think that a clear case of direct infringement exists even though the contemplated sale may occur outside the United States because 35 U.S.C. §271(a) declares an “offer to sell … any patented invention, within the United States” to be an act of infringement. On the other hand, one might think that if a company negotiates the terms of a sale exclusively outside the United States, even for products that are intended for the United States market, the negotiations by themselves should not constitute direct infringement because there has been no activity “within the United States.”