Amicus Curiae Brief — Micrel, Inc. v. Linear Technology Corp

Supreme Court brief2002

Ask Donna

What actually matters in this document.

Text

. Las Se te eet, Yj kb.

FILED

ee |

APR 18 2003

Jn the Supreme Court of the Gnited States

MICREL, INC., PETITIONER

LINEAR TECHNOLOGY CORPORATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

JAMES A. TOUPIN JEFFREY P. MINEAR

General Counsel Assistant to the Solicitor

JOHN M. WHEALAN ere

Solicitor ViTO J. DIPIETRO

ANTHONY J. STEINMEYER

THOMAS W. KRAUSE JOHN FARGO

RAYMOND T. CHEN ieee Davin

Associate Solicitors —.

Patent and Trademark torneys

Office Department of Justice

Washington, D.C. 20231 Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

The United States patent laws provide that a person is

not entitled to a patent if “the invention was * * * onsale

in this country, more than one year prior to the date of the

application for patent.” 35 U.S.C. 102(b). The question

presented is:

Whether the “on-sale” bar is triggered if the patentee

engages in significant efforts to commercialize an invention,

but does not make a formal offer to sell the invention.

(I)

TABLE OF CONTENTS

Page

IIT i sialic delebahoeieelnniddisaasenenahietuiiaies 1

sii ilaiieciepelilipabinisendisaeindiainubabobteninimeneiinse 5

A. Section 102(b)’s on-sale bar is triggered by a

commercial offer to sell the invention ............cccscseceeee 6

B. The Federal Circuit’s decision refines that

court’s approach to identifying a commercial

EEE IEEE ‘siceriiishenssoniinskebenninensdishssmnssbssionnneenninnioncenonianns 7

C. The Federal Circuit’s decisions in this and other

recent cases do not give rise to a square con-

TCE WITH PTIOF GOCISIONG .....0s00svcessvessssrsoccvsesersevesesseseseees 11

D. The Federal Circuit’s decision is unlikely to

result in improper extension of a patent’s

ESSE a ee ee OO RE 17

E. The Federal Circuit’s approach to the on-sale

WOO QEUEEINIIO B0 OYON VS oaccssnesecesscccesesesssesessverneceseresesovers 18

Conclusion ...........s0000 ae se iseliiadaieaieaniaiiiaannendiinbindshes 20

TABLE OF AUTHORITIES

Cases:

American Can Co. v. Crown Cork & Seal Co.,

GOS © 20 GES (7th Car. UGB) .n..ceccsosaserecceccessspsoresvcescvovess — 13

Andrews v. Hovey, 123 U.S. 267 (1887) .....c.cscscsesssssseseseees 6

B.F. Sturtevant Co. v. Massachusetts Hair & Felt

Co., 124 F.2d 95 (1st Cir. 1941), cert. denied,

EN RII cciasiteissihephisitnshasnnietnnamsenianshiseviininunerenianrs 9

Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,

489 U.S. 141 (1989) ieslehsnieneninhiiaaeaniucnieleditcaiciodinns 2,6

Brasseler, U.S.A. v. Stryker Sales Corp., 182 F.3d

888 (Fed. Cir. 1999) ....... 11

Buildex Inc. v. Kason Indus., Inc., 849 F.2d 1461

(Fed. Cir. 1988) 9

City of Elizabeth v. American Nicholson Pavement

Co., 97 U.S. 126 (1877) ........cscesoeee vossnbiteaesnoneren 7

(IIT)

Cases—Continued: Page

D.L. Auld Co. v. Chroma Graphics Corp., 714 F.2d

BAGG CPOE Cs Fe ncierciietasnncnicieiadinnntiadn 14

Envirotech Corp. v. Westech Eng’g Inc., 904 F.2d 1571

CE: SI BID siseissithisinonniipeneaiianniniaiiiaaaainniass 8, 10

Ferag AG v. Quipp Inc., 45 F.3d 1562 (Fed. Cir.),

cert. denied, 516 U.S. 816 (1995) ............ io 10

Frantz Mfg. Co. v. Phenix Mfg. Co., 457 F.2d 314

I Ss OIIEE nucusseeshinisninhsishnsienenieniecouhdiiosaiadbciliaiiamiaeasnininennti 7

George R. Churchill Co. v. American Buff Co., 365

Fe Ee TOE sctlltisiniassintiaisiinsiinsietaincusieamahiibine 13

Graham v. John Deere Co., 383 U.S. 1 (1966) .............0000 2,3

Group One, Ltd. v. Hallmark Cards, Inc., 254

Fee REE Ge OG, Ces ED visitieniessensnrsnstripneninnninnstimenionnnn 2, 5, 8,

9, 11, 12, 14, 15, 19

Holmes Group, Inc. v. Vornado Air Circulation,

SE FIED sesnentessescsneniseninsbenenianenteninmennenisinineniinn 13

Intel Corp. v. United States Int'l Trade Comm’n,

DOG FG GEE COE. FAW, BODE) aeesetcssiescccssestncorensennnennisinnintine 9,14

Jeneric/Pentron, Inc. v. Dillon Co., 171 F. Supp. 2d

EE Sh, Be interacts cencilcidpatiihtintibdnidismaiannetninin 11

Kalvar Corp. v. Xidex Corp., 384 F. Supp. 1126

(N.D. Cal. 1973), aff'd, 556 F.2d 966 (9th Cir. 1977) ........ 14

King Instrument Corp. v. Otari Corp., 767 F.2d

853 (Fed. Cir. 1985), cert. denied, 475 U.S. 1016

CRIED wncosieinisittenimsstioiciienndiceatnlnisiiiaidiciiigsiitiniatcmnininenisaveniuiniinineticii 8

Lacks Indus., Inc. v. McKechnie Vehicle Components

USA, 322 F.3d 1335 (Fed. Cir. 2008) ..........scsssssssssssssesssees 15

Lubrizol Corp. v. Exxon Corp., No. 90-1161,

1991 WL 19786 (Fed. Cir. Mar. 20, 1991) ........esesesesesees 14

Metallizing Eng’g Co. v. Kenyon Bearing & Auto

Parts Co., 153 F.2d 516 (2d Cir.), cert. denied,

Se BE ED seacticirievpsievisesiicieantios - , 7

Minnesota Mining & Mfg. Co. v. Chemque, Inc., 303

F.3d 1294 (Fed. Cir. 2002), cert. dismissed, No. 02-828

CE. CFE tesetsnetceroneesinencenniiinintinntanatshaininansitnnésiiniasininetinn 14

Cases—Continued: Page

Minnesota Mining & Mfg. Co. v. Kent indus., 409

A PGI TOD ccswsicsivicanepernintationiabecialiee ese. 13

Netscape Communications Corp. v. Konrad, 295

F.3d 1815 (Fed. Cir. 2002) .........cssssssssssssesscssssesssecsessessssssesen 11

Pennock v. Dialogue, 27 U.S. (2 St ee 6

Pfaff v., Wells Elecs., Inc., 525 U.S. 55 (1999) cccccccssssss 5, 6, 7,

8, 16, 17

RCA Corp. v. Data Gen. Corp., 887 F.2d 1056

GE I I scsnsiscnniciccorviciassnoeaoanaiidiantel ates 12, 13

Rotec Indus. v. Mitsubishi Corp., 215 F.3d 1246

CPE TI ID sicsiisctticrinssstninnsniatctioniesanll as 12

Scaltech, Inc. v. Retec/Tetra, LLC., 269 F.3d 1321

Pe Tie ND cormssnbinenalinenenbniaal anlage eet oes 12

Schreiber Foods, Inc. v. Beatrice Cheese, Inc.,

No. 00-1303, 2002 WL 315187 (Fed. Cir. Feb. 27,

2002), petition for cert. pending, No. 02-129 (filed

PU ED iitssileiniicniiiinat eee noe 12

Seal-Flex, Inc. v. Athletic Track & Court Constr.,

98 F.3d 1318 (Fed. Cir. 1996) ....c..ccecccscsscssscccsssssscsssesoseecoseees 8

Stearns v. Beckman Instruments, Inc., 737 F.2d

De EN SANs BIO sincscesssesstisasnesiiviiebicditaadenbintaeesstea 14

Strong v. General Elec. Co., 434 F.2d 1042 (5th Cir

EPO sscshiladiicnileeiiaieaiac etnies 13

Theis, In re, 610 F.2d 786 (C.C.P.A. 1979) cccccccccccccssscccsescoss 15

Timely Prods. Corp. v. Arron, 523 F.2d 288

ee aE SD seniiesitninsstihaabeninsiiabocanes Wier ee 9

UMC Elecs. Co. v. United States, 816 F.2d

647 (Fed. Cir. 1987), cert. denied, 484 U.S. 1025

Weatherchem Corp. v. J.L. Clark, Inc., 163 F.3d

Sen CW SIN, TIED ssccsnlissinneioisincesiaacaleiactaeaia s

Constitution, treaties, statutes and regulation: Page

U.S. Const. Art. I, § 8, Cl. 8 (Patent Clause) ..........s.sseseee 2

Convention at Brussels, Dec. 14, 1900, 32 Stat. 1936 ......... 18

Convention at Lisbon, Oct. 31, 1958, 13 U.S.T. 1 ................ 18

Convention at London, June 2, 1934, 53 Stat. 1768 ............ 18

Convention at Stockholm, July 14, 1967, 24 U.S.T.

SGD .ccarevensennssonnsinaninnbievnpiicteniantiiniielinsnsninniiiiisinsattantaalasdaniaaiisiiatints 18

Convention at the Hague, Nov. 6, 1925, 47 Stat. 1789 ....... 18

Convention at Washington, June 2, 1911, 38 Stat. 1646 .... 18

Paris Convention for the Protection of Industrial

Property, Mar. 20, 1883, 25 Stat. 1372 .........sscssssssssseseees 18

Patent Act of 1790, ch. 7, 1 Stat. 109 ..........cccccrsscsecsssscssssceees 2

Patent Act of 1793, ch. 11, 1 Stat. 318 ..........cccsscsrcsssccsseseceees 2

Patent Act of 1836, ch. 357, 5 Stat. 117 .........ccccsccsssscssecsssers 2

Patent Act of 1839, ch. 88, 5 Stat. 353 ...........ccccsscsrsssescersssees 2

Patent Act of 1870, ch. 230, 16 Stat. 198 ........cscsssseseeeees 2

Patent Act of 1939, ch. 451, 53 Stat. 1212 .......... jeibiiaseuaiibaaiaiaii 2

BE, GR a, FI scvesesevisssnsiccsnninsnihsnsericinsintaaistaaieiactianatanebicaiaaanis 6

Patent Act of 1952, ch. 950, 66 Stat. 792 .........cscscescsseressenes 2

SS UIE, 100 66 G00, peevneenscssscenoneintieniitisioanimnnrnaaiiaiiiio 2

BO UTA. DIE ennsinisesteinsseunenninsinsenaiasiiiguiensieeienaniaaaiaimaasi 2

SD TFTA A, DOB TGD ccconssccsseessnstscosenemnaseineiniaasmiiamaaianananial 2

SE UTA, BEE ccsscssmnsssisittihasiniatiiniisaipaiiiaadiaiiaaaia 2, 3,6

35 U.S.C. 102(a) as vessetunebienianencnampenetitiiemamiaiads 2,3

OD UF Oe cecsiviececisntamencienstinniiiniiins 1, 3, 4, 5, 6, 7, 17, 18, 19

35 U.S.C. 108 .... seceiciaistiinstibhiciiiiieecubintiionduidieiainiimnaaaittias 2,3

35 U.S.C. 103(a) _iinnantgiihiennetiienneiiiidaageniniiiaiaiaila 3

GF EAA, BEGIE snscstintinntiseanintiniomiatmeniamiaeamaaianas 18

OD UPA REPROD ‘cccersisineniccsinpmeciainmsiiiinediias - 12

FS CF Eke BY vessressinmaneesstionsainmniaieliaadiaiantion ‘ 18

Miscellaneous:

2 Ronald A. Anderson, Anderson on the Uniform

Commercial Code (8d ed. 1997) ......s.ssccsssssessesssesserseseeseenees 11

VII

Miscellaneous—Continued: Page

Patrick J. Barrett, New Guidelines for Applying the

On Sale Bar to Patentability, 24 Stan. L. Rev. 730

CEP -nivtniuschsnmisiensieinsiiechiniitibibebsenoneadipniaapiaaimenieinindauensneiicesicncen 15

1 Richard A. Lord, Williston on Contracts (4th ed.

i ne aeimesinincin 11,15

Restatement (Second) of Contracts (1981) .......s:-.ssssse.. 10, 15

Robert L. Stern et al., Supreme Court Practice (8th ed.

TPT ‘scsstsninerinaiteathanestaiahaeeiitdeasinaialieitateiadadiliislibaiidaibdianesisainin 14

United States Patent & Trademark Office, Manual of

Patent Examining Procedure (8th ed. 2008) -eecccccccosessse-. 10

Jn the Supreme Court of the Gnited States

No. 02-39

MICREL, INC., PETITIONER

vz.

LINEAR TECHNOLOGY CORPORATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the order of this

Court inviting the Solicitor General to express the views of

the United States.

STATEMENT

Respondent Linear Technology Corporation (Linear) sued

petitioner Micrel, Inc. (Micrel) for patent infringement. The

United States District Court for the Northern District of

California held that Linear’s patent was invalid under 35

U.S.C. 102(b) because the inventor—who assigned the pat-

ent to respondent—did not apply for his-patent until more

than one year after respondent had placed the invention “on

sale.” Pet. App. 72a. The United States Court of Appeals

for the Federal Circuit reversed. Jd. at 1a-26a. The court of

appeals reasoned that, while respondent had engaged in —_

“significant pre-release efforts at commercialization and

* * * targeted advertising to” customers, that activity did

not trigger the on-sale bar because the activity did not rise

(1)

i a

“to the level of a contractual offer-for-sale.” Jd. at 12-13a

(citing Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d

1041 (Fed. Cir. 2001)).

1. The Patent Clause of the Constitution empowers Con-

gress “[t]o promote the Progress of Science and useful Arts

by securing for limited Times to * * * Inventors the

exclusive Right to their * * * Discoveries.” U.S. Const.

Art. I, § 8, Cl. 8 (emphasis added). Congress has imple-

mented the Patent Clause through statutory enactments,

commonly known as the Patent Acts, that have set out the

conditions for obtaining a patent. See, e.g., Patent Act of

1790, ch. 7, 1 Stat. 109; Patent Act of 1798, ch. 11, 1 Stat. 318;

Patent Act of 1836, ch. 357, 5 Stat. 117; Patent Act of 1839,

ch. 88, 5 Stat. 353; Patent Act of 1870, ch. 230, 16 Stat. 198;

Patent Act of 1939, ch. 451, 53 Stat. 1212; Patent Act of 1952,

ch. 950, 66 Stat. 792.

The Patent Act of 1952, as amended, provides the relevant

law governing the issuance of patents. See 35 U.S.C. 100 et

seg. Sections 101 through 103 set out the basic requirements

to qualify for a patent. 35 U.S.C. 101-103. As this Court has

explained, those sections indicate that “patentability is

dependent upon three explicit conditions: novelty and utility

as articulated in § 101 and § 102, and non-obviousness * * *,

as set out in § 103.” Grakam v. John Deere Co., 383 US. 1,

12 (1966); United States v. Adams, 383 U.S. 39, 48 (1966).

See generally Bonito Boats, Inc. v. Thunder Craft Boats,

Inc., 489 U.S. 141, 146-151 (1989).

Section 101 provides the basic test for patentability. It

states that an inventor may obtain a patent for “any new and

useful process, machine, manufacture, or composition of

matter, or any new and useful improvement thereof.” 35

U.S.C. 101. Section 102 amplifies on the limitations that

arise from the novelty requirement. 35 U.S.C. 102. Section

102(a) provides, for example, that an applicant is not entitled

to a patent if “the invention was known or used by others in

this country * * * before the invention thereof by the

applicant for patent.” 35 U.S.C. 102(a). Section 102(b)

further states that an applicant is not entitled to a patent if

“the invention was * * * in public use or on sale in this

country, more than one year prior to the date of the

application for patent.” 35 U.S.C. 102(b).

Section 103 of the Patent Act articulates the additional

requirement, added explicitly in 1952, that the subject

matter of the invention must be “non-obvious.” 35 U.S.C.

103. Section 103(a) specifically states that a patent may not

be obtained, even though the invention is not identically

disclosed or described under Section 102, if the differences

between the subject matter and the prior art “are such that

the subject matter as a whole would have been obvious at

the time the invention was made to a person having ordinary

skill in the art.” 35 U.S.C. 103(a). In other words,

“[platentability is to depend, in addition to novelty and

utility, upon the ‘non-obvious’ nature of the ‘subject matter

sought to be patented’ to a person having ordinary skill in

the pertinent art.” Graham, 383 U.S. at 14.

2. Respondent Linear designs, manufactures, and sells

linear integrated circuits for use in a variety of applications,

including telecommunications, cellular phones, and com-

puters. In April 1985, Carl Nelson, respondent’s employee,

conceived an invention—covered by the patent at issue

here—while developing a new silicon chip called the LT1070.

Pet. App. 30a. The invention seeks to advance the art of

“switching regulator circuitry,” which “provides regulated

voltages or currents to electrical devices.” Id. at 2a.

Respondent officially released the LT1070 for sale on

November 18, 1985. In the months leading up to the release

date, respondent “engaged in extensive pre-release mar-

keting activity designed to generate commercial interest in

the chip both in the United States and abroad.” Pet. App.

3a. For example, in July 1985, respondent conducted a

conference for its sales force to discuss the LT1070. Jd. at

3a-4a. “By October 1985, [respondent] had generated

enough excitement that the independent sales represen-

tatives were actively promoting the LT1070 to customers,

even though the new chip had not yet been released for

sale.” Id. at 4a. Despite this extensive commercial activity,

however, respondent’s sales representatives never provided

customers with either pricing information or samples of the

chip. See id. at 14a, 49a. Nevertheless, “in light of its mar-

keting blitzkrieg, [respondent] received purchase orders

from four of its European distributors offering to buy

LT1070 chips before the official release date.” Jd. at 4a-5a.

On November 18, 1985, respondent officially released the

LT1070 chip for sale, and one year later, on November 18,

1986, respondent applied for a patent on Nelson’s invention.

Pet. App. 6a. The patent issued as U.S. Patent No. 4,755,741

and Reexamination Certificate B1 4,755,741 (the 741 patent).

Id. at la. The so-called “critical date” for purposes of Section

102(b)’s on-sale bar is one year before the patent application

date. The critical date in this case is the official release

date—November 18, 1985—and if the invention was in fact

“on sale” before that date, the patent would be invalid.

3. Petitioner Micrel also makes switching regulator cir-

cuitry. Pet. App. 6a. Respondent sued petitioner claiming

that two of petitioner’s chips infringed the 741 patent. Ibid.

In a motion for summary judgment of patent invalidity,

petitioner argued that respondent had placed the LT1070

chip on sale more than one year before the 741 patent’s

November 18, 1986, filing date, thus triggering Section

102(b)’s on-sale bar. Ibid. The district court denied peti-

tioner’s motion, but bifurcated the case for a separate trial

on the Section 102(b) issue, and stayed the balance of the

case pending resolution of that issue. bid. Based on its

factual findings concerning respondent’s “pre-critical date

commercialization efforts” and respondent’s handling of

“four pre-critical date purchase orders,” the district court

concluded that respondent “had offered for sale and sold the

LT1070 prior to the critical date.” Id. at 6a-9a, 27a-72a.

The Federal Circuit reversed. Pet. App. la-26a. That

court rejected the district court’s holding that respondent’s

invention was put “on sale” within the meaning of Section

102(b) more than one year before the patent application was

filed. The court noted that Group One, Ltd. v. Hallmark

Cards, Inc., 254 F.3d 1041 ‘Fed. Cir. 2001), held that “pro-

motional activity not rising to the level of a contractual offer-

for-sale” does not trigger the on-sale bar. Pet. App. 13a.

After reviewing the evidence, the court held that “none of

[respondent’s] activities constitutes an offer for sale under

general principles of contract law.” Ibid. In particular, the

court held that none of the pre-critical date communications

—which included respondent’s advertising and provision of

preliminary data sheets and potential customers’ requests

for samples—“rose to the level of an offer for sale that would

form a contract if accepted.” Id. at 17a. While respondent’s

eventual acceptance of the pre-release purchase orders re-

sulted in an actual sale of the invention, the court ruled that

the sale did not occur until after the critical date. Id. at 18a-

22a.

DISCUSSION

The court of appeals concluded that respondent did not

place its LT1070 chip “on sale” before the critical date of

November 18, 1985, and that Section 102(b)’s on-sale bar

therefore does not invalidate its 741 patent. That fact-based

decision is not in conflict with any decision of this Court,

with any other Federal Circuit decision, or with any decision

of any other court of appeals. The decision below clarifies

the test for determining when an invention is “on sale” in

light of this Court’s decision in Pfaff v. Wells Electronics,

Inc., 525 U.S. 55 (1999). It does not mark any significant

departure from prior Federal Circuit precedent, but- rather

is part of the Federal Circuit’s ongoing effort to clarify the

law relevant to Section 102(b)’s on-sale bar. Further review

by this Court is not warranted.

A. Section 102(b)’s On-Sale Bar Is Triggered By A Com-

mercial Offer To Sell The Invention

This Court has often explained that “the patent system

represents a carefully crafted bargain that encourages both

the creation and public disclosure of new and useful advances

in technology, in return for an exclusive monopoly for a

limited period of time.” Pfaff v. Wells Elecs., Inc., 525 U.S.

55, 63 (1999) (citing Bonito Boats, Inc. v. Thunder Craft

Boats, Inc., 489 U.S. 141, 150-151 (1989)). Section 102 of the

Patent Act sets out conditions on the issuance of a patent

that are designed to ensure that the invention identified in

the patent application is sufficiently novel to justify the

award. Section 102(b) states the condition of particular per-

tinence here:

A person shall be entitled to a patent unless—the inven-

tion was patented or described in a printed publication in

this or a foreign country or in public use or on sale in this

country, more than one year prior to the date of the

application for patent in the United States.

35 U.S.C. 102(b) (emphasis added). Section 102(b)’s “on-sale”

bar prevents an inventor who has placed his invention in

commerce from obtaining a patent unless the inventor ap-

plies for a patent within one year after placing it “on sale.”

As this Court explained in Pfaff, Section 102(b) “serves as

a limiting provision, both excluding ideas that are in the pub-

lic domain from patent protection and confining the duration

1 This Court “originally held that an inventor loses his right to a

patent if he puts his invention into public use before filing a patent

application.” Pfaff, 525 U.S. at 64 (citing Pennock v. Dialogue, 27 U.S. (2

Pet.) 1, 23-24 (1829)). The Patent Act of 1836, ch. 357, § 1, 5 Stat. 117,

expressly included an on-sale bar to the issuance of a patent. In 1839,

Congress enacted a two-year grace period in which the inventor could file

an application. § 7, 5 Stat. 354. See Andrews v. Hovey, 123 U.S. 267, 274

(1887) (explaining that purpose of the amendment was “to fix a period of

limitation which should be certain”). In 1939, Congress reduced the grace

period from two years to one year. § 1, 53 Stat. 1212.

of the monopoly to the statutory term.” 525 U.S. at 64

(citing Frantz Mfg. Co. v. Phenix Mfg. Co., 457 F.2d 314, 320

(7th Cir. 1972)). See Metallizing Eng’g Co. v. Kenyon Bear-

ing & Auto Parts Co., 153 F.2d 516, 519-520 (2d Cir.) (L.

Hand, J.), cert. denied, 328 U.S. 840 (1946) (stating that once

an invention is ready for patenting, the inventor “must con-

tent himself with either secrecy or legal monopoly”). Recog-

nizing that an inventor must sometimes test an invention “in

the public eye” to “perfect his discovery,” this Court has long

omitted from the on-sale bar any sales that are for experi-

mental purposes. 525 U.S. at 64-65 (citing City of Elizabeth

v. American Nicholson Pavement Co., 97 U.S. 126, 137

(1877)). 2

In Pfaff, this Court specifically considered whether an

invention had to be reduced to practice to trigger the on-sale

bar. 525 U.S. at 57. The Court held that the bar was trig-

gered when an invention was ready for patenting—eg.,

when detailed engineering drawings were completed—and

did not require a reduction to practice of the invention. Id.

at 67-68. Of particular relevance here, the Court in Pfaff

also stated that, to trigger the on-sale bar, the invention

“must be the subject of a commercial offer for sale.” Id. at

67 (emphasis added). The Court explained that “{aJn

inventor can both understand and control the timing of the

first commercial marketing of his invention.” [bid.

The dispute in this case is whether respondent’s com-

mercial activities, activities that fall short of an actual sale or

a formal offer for sale in the contract sense, trigger the on-

sale bar.

B. The Federal Circuit’s Decision Refines That Court’s

Approach To Identifying A Commercial Offer For Sale

Before Pfaff, the Federal Circuit evaluated the Section

102(b) on-sale bar under a “totality of the circumstances”

test. 525 U.S. at 66 n.11. Often, as in Pfaff, an “on-sale” dis-

pute, and therefore the totality-of-the-circumstances test,

focused on whether the invention was sufficiently complete

for purposes of the on-sale bar. But the Federal Circuit also

applied the totality-of-the-circumstances test to whether a

“definite sale or offer” had occurred. See, ¢.g., Envirotech

Corp. v. Westech E'ng’g Inc., 904 F.2d 1571, 1574 (Fed. Cir.

1990); UMC Elecs. Co. v. United States, 816 F.2d 647, 656

(Fed. Cir. 1987), cert. denied, 484 U.S. 1025 (1988). This

Court noted in Pfaff that the Federal Circuit’s totality-of-

the-circumstances inquiry had been criticized as “unnec-

essarily vague.” 525 U.S. at 66 n.11 (quoting Seal-Flex, Inc.

v. Athletic Track & Court Constr., 98 F.3d 1318, 1323 n.2

(Fed. Cir. 1996)).

Immediately after this Court’s decision in Pfaff, the

Federal Circuit announced it would not apply a totality-of-

the-circumstances test to the status-of-the-invention aspect

of the on-sale bar. Weatherchem Corp. v. J.L. Clark, Inc.,

"53 F.8d 1326, 1833 (Fed. Cir. 1998) (on-sale bar inquiry

conducted “without balancing various policies according to

the totality of the circumstances as may have been done in

the past”) (citing Envirotech, supra; UMC Elecs., supra; and

King Instrument Corp. v. Otari Corp., 767 F.2d 853, 860

(Fed. Cir. 1985), cert. denied, 475 U.S. 1016 (1986)). Soon

thereafter, the Federal Circuit stated that Pfaff entirely

“swept away this court’s ‘totality of the circumstances’

analysis of the on-sale bar,” including its application to the

commercial-offer-for-sale aspect of the on-sale bar. Group

One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041, 1046 (Fed.

Cir. 2001). The court concluded that Pfaff “strongly sug-

gests that the offer must meet the level of an offer for sale in

the contract sense, one that would be understood as such in

the commercial community.” Jbid. “Such a reading leaves

no room for ‘activity which does not rise to the level of a

formal “offer” under contract law principles.’” Jd. at 1046-

1047.7

Petitioner asserts that the Group One decision “repre-

sents a dramatic departure from the settled understanding

of federal patent law.” Pet. 17. The United States does not

share that view. Although Group One re-articulated the

governing standard in response to this Court’s Pfaff de-

cision, it does not appear to have substantially changed the

controlling legal inquiry. In the context of determining

whether and when an invention was offered for sale, the

totality-of-the-circumstances test, in practice, focused on

whether the inventor had made a “definite offer” to sell the

invention. For example, in UMC Electronics, the Federal

Circuit held that the inventor had “made a definite offer to

sell” its patented invention more than one year before the

date of the patent application. 816 F.2d at 657. The definite

offer was embodied in a bid submitted in response to the

United States Navy’s request for proposals. Jd. at 650. In

contrast, in the absence of a definite offer, the on-sale bar

was not triggered. Thus, for example, when an inventor held

a sales conference and distributed samples of the invention

to its sales force, the on-sale bar was not triggered because

“{i]t is not a violation of the on-sale bar to make preparations

for the sale of a claimed invention—an actual sale or offer to

sell must be proved.” Intel Corp. v. United States Int'l

Trade Comm’n, 946 F.2d 821, 830 (Fed. Cir. 1991). Accord

Buildex Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463-1464

(Fed. Cir. 1988) (“no more than a firm offer to sell may be

2 Contrary to petitioner’s view (Pet. 26 n.5), Group One does not

revive the “on hand” doctrine. Under that now-discarded doctrine, the on-

sale bar was not triggered until the invention was “completed, delivered,

and accepted.” B.F. Sturtevant Co. v. Massachusetts Hair & Felt Co., 124

F.2d 95, 97 (1st Cir. 1941), cert. denied, 315 U.S. 823 (1942); Timely Prods.

Corp. v. Arron, 523 F.2d 288, 302 (2d Cir. 1975). Under the Group One

test, a sale of a product that is ready for patenting but not yet delivered,

or even manufactured (as in Pfaff), triggers the bar provided that it is the

subject of a commercial offer for sale.

sufficient”); Envirotech, 904 F.2d at 1575 (no on-sale bar

where invention was not “definitely offered for sale’’).

The Manual of Patent Examining Procedure, which the

United States Patent and Trademark Office (PTO) has pre-

pared as a guide to patent law and practice, duly reflects

that a “definite offer” is required to trigger the on-sale bar.

United States Patent & Trademark Office, Manual of Patent

Examining Procedure (8th ed. 2003) (MPEP). Section

2133.03(b) states: “An impermissible sale has occurred if

there was a definite sale, or offer to sell, more than 1 year

before the effective filing date.” Jd. § 2133.03(b) (citing

Ferag AG v. Quipp Inc., 45 F.3d 1562 (Fed. Cir.), cert.

denied, 516 U.S. 816 (1995)). See Ferag, 45 F.3d at 1569

(“What is clear, based on the November order confirmation,

is that by November of 1979 Ferag had decided to supply the

patented conveyor pursuant to its agreements with Ber-

gen.”).°

The Federal Circuit’s decision in Group One re-articulated

the governing standard in terms that this Court employed in

Pfaff, and the MPEP has recently been revised to reflect

that re-articulation. Nevertheless, the Group One decision’s

refinement of the inquiry does not appear to have resulted in

a dramatic change in the law. Both the “commercial offer”

and the “definite offer” articulations are grounded in tradi-

tional contract-law principles. As the Restatement (Second)

of Contracts explains, there is no “offer” in the contract

sense “if the person to whom it is addressed knows or has

reason to know that the person making it does not intend to

conclude a bargain until he has made a further manifestation

of assent.” Restatement (Second) of Contracts § 26 (1981)

3 Petitioner points (Pet. 11-12) to Section 2133.03(e)(1) of the MPEP,

entitled “Permitted Activity; Experimental Use,” which contrasts “ex-

perimental use” and “commercial exploitation.” The discussion therein

concerns the separate question, not at issue in this case, of whether sales

for experimental use, as opposed to commercial use, trigger the on-sale

bar.

(Restatement). Similarly, as a leading commentator states,

“the offer must be sufficiently definite to lead the offeree to

understand that a bargain is being proposed and how the

offeree may conclude the bargain.” 1 Richard A. Lord,

Williston on Contracts § 4.4, at 270 (4th ed. 1990) (emphasis

added).* Thus, all the pre-Group One cases cited above—

UMC Electronics, Intel, Buildex, Envirotech and others—

are consistent with the traditional contract-law under-

standing of offers for sale. The mere reference in Group One

to “formal” contract principles (254 F.3d at 1047) does not

manifest a substantial difference, in practice, between Group

One and prior Federal Circuit case law.”

C. The Federal Circuit’s Decisions In This And Other

Recent Cases Do Not Give Rise To A Square Conflict

With Prior Decisions

The Federal Circuit’s decisions in this case and in other

post-Group One on-sale bar cases are consistent with pre-

Group One case law. An actual sale continues to trigger the

on-sale bar under any standard. Brasseler, U.S.A. v. Stryker

Sales Corp., 182 F.3d 888, 890 (Fed. Cir. 1999); Netscape

Communications Corp. v. Konrad, 295 F.3d 1315, 1324 (Fed.

Cir. 2002). Likewise, “formal proposal documents” that

4 The Uniform Commercial Code (UCC) itself does not define “offer.”

See 2 Ronald A. Anderson, Anderson on the Uniform Commercial Code

§ 2-206:12 (3d ed. 1997) (cited in Jeneric/Pentron, Inc. v. Dillon Co., 171 F.

Supp. 2d 49, 67 (D. Conn. 2001) (“The UCC does not define ‘offer,’ and,

therefore, does not displace pre-code law as to what constitutes an

offer.”)).

5 The Group One court stated that “(aJs a general proposition, [it] will

look to the [UCC] to define whether, as in this case, a communication or

series of communications rises to the level of a commercial offer for sale.”

254 F.3d at 1047. The Group One court observed that the Federal Circuit

has previously taken guidance from the UCC about the meaning of “sale”

in patent laws. Ibid. There is nothing novel in relying on UCC concepts in

the present context. The Group One court itself noted that the district

court in that very case—i.e., before its so-called “dramatic departure”—

“used the UCC as one of its guides.” Jd. at 1048.

include the “quotation and the duration of the offer” continue

to “provide sufficiently definite offer language to constitute a

commercial offer for sale.” See Scaltech, Inc. v. Retec/Tetra,

LLC., 269 F.3d 1321, 1829 (Fed. Cir. 2001). And the Federal

Circuit’s unpublished decision in Schreiber Foods, Inc. v.

Beatrice Cheese, Inc., No. 00-1303, 2002 WL 315187 (Feb. 27,

2002), petition for cert. pending, No. 02-129 (filed July 23,

2002), relied on both a pre-Group One decision (UMC

Electronics) and Group One to find the absence of a

commercial offer for sale.°

Contrary to petitioner’s claim, an earlier decision of the

Federal Circuit did not expressly hold that “the on-sale bar

is triggered by commercial exploitation, notwithstanding the

absence of a technical offer for sale” (Pet. 12). In RCA Corp.

v. Data General Corp., 887 F.2d 1056 (1989), the Federal

Circuit suggested that the on-sale bar may be triggered “by

a patentee’s commercial activity which does not rise to the

level of a formal ‘offer’ under contract law principles.” Jd. at

1062. As the Group One court explained, that portion of the

opinion “was unnecessary to the decision in the case, and

thus is non-binding dictum.” 254 F.3d at 1046. Thus, the

Group One_decision did not “overturn[]” or “overrule[]”

RCA. See Pet. 11, 26.

Moreover, the holding of RCA further demonstrates that

the Group One decision does not represent a significant

departure from settled law. In RCA, the court found a “defi-

nite offer” based on a “lengthy written proposal providing

background information, a detailed delivery schedule, a rate

of completion of the proposed work and a separate section on

financial data and costs,” all of which constituted a proposal

6 Moreover, the Group One decision accords with the Federal Circuit’s

interpretation of a similar patent-law provision. Section 271(a) makes

“offers to sell” a patented product an infringement. 35 U.S.C. 271(a).

Under Federal Circuit case law, that provision also requires an offer to

sell in the traditional contract-law sense. Rotec Indus. v. Mitsubishi

Corp., 215 F.3d 1246, 1252, 1254 (Fed. Cir. 2000).

that could have been “accepted.” 887 F.2d at 1062. There

was, in the words of the RCA court, “a definite offer in the

contract sense.” Jbid. Thus, there is plainly no conflict

between the Federal Circuit’s Group One decision and its

RCA decision.

Petitioner describes (Pet. 12-15) a purported inter-circuit

conflict between the “formal offer” language of Group One

and cases from other circuits that pre-date the establishment

of the Federal Circuit. But even if such a conflict were to

exist, a principal purpose of establishing the Federal Circuit

was to create a single forum for resolving such questions.

See, e.g., Holmes Group, Inc. v. Vornado Air Circulation,

535 U.S. 826, 838 (2002) (Stevens, J., concurring) (describing

the Federal Circuit as a “specialized court that was created,

in part, to promote uniformity in the development of this

area of” patent law). A conflict between the Federal Circuit

and decisions that pre-date its creation, therefore, would not

ordinarily warrant the attention of this Court.

In any event, there is no inter-circuit conflict between the

Federal Circuit’s on-sale case law and decisions from other

courts of appeals. The cases that petitioner cites all appear

to involve solicitations of potential customers that include

samples or product demonstration and other sales-related

material.’ Before Group One, the Federal Circuit often

stated that solicitations to customers that include a sample of

the invention and other key sales information, such as price,

7 See, e.g., Minnesota Mining & Mfg. Co. v. Kent Indus., 409 F.2d 99,

100 (6th Cir. 1969) (formal letter, accompanied by sample, requesting that

the Navy conduct a procurement approval test); Strong v. General Elec.

Co., 484 F.2d 1042, 1044 (5th Cir. 1970) (“dozens” of meter boxes dis-

tributed to power company so that company could place them on approved

equipment list accompanied by other “great efforts to sell” the meter

boxes); George R. Churchill Co. v. American Buff Co., 365 F.2d 129, 133

(7th Cir. 1966) (distribution of samples to customers accompanied by maxi-

mum prices); American Can Co. v. Crown Cork & Seal Co., 693 F.2d 653,

656 (7th Cir. 1982) (distribution of samples and prices to customers).

could trigger the on-sale bar.’ This case does not present

that issue because samples were not sent to customers

before the critical date. See Pet. App. 17a. But in any

event, it is presently unclear, under the Group One rationale,

how the provision of samples and other sales-related infor-

mation to potential customers would affect the “commercial

offer for sale” inquiry. See Group One, 254 F.3d at 1048

(declining to provide rules to govern future cases).”

Petitioner also suggests that the Growp One standard

would alter the consequences of advertising or trade-show

activities under the on-sale bar. See Pet. 12, 16, 17. The

Group One court did “note in passing that contract law tradi-

tionally recognizes that mere advertising and promoting of a

8 See, e.g., D.L. Auld Co. v. Chroma Graphics Corp., 714 F.2d 1144,

1148 (Fed. Cir. 1983) (samples submitted with “pricing and delivery dates

in writing”); Stearns v. Beckman Instruments, Inc., 737 F.2d 1565 (Fed.

Cir. 1984) (samples and price quote trigger bar); Lubrizol Corp. v. Exxon

Corp., No. 90-1161, 1991 WL 19786, at *1 (Fed. Cir. Mar. 20, 1991)

(unpublished) (on-sale bar triggered by “customer meetings with sales

representatives, quotations of prices and delivery terms, and samples to

develop customer familiarity”). Petitioner also relies (Pet. 15-17) on

district court decisions that, like petitioner’s cases from other circuits,

appear to involve the distribution to customers of samples and related

sales materials that would trigger the on-sale bar under the Federal

Circuit’s “definite offer” test. See, e.g., Kalvar Corp. v. Xidex Corp., 384

F. Supp. 1126, 1132-1133 (N.D. Cal. 1973) (dissemination of samples and

price quotes to customers), aff’d, 556 F.2d 966 (9th Cir. 1977). But a

conflict between the decision below and a district court decision would not

warrant this Court’s review. See Robert L. Stern et al., Supreme Court

Practice 237 (8th ed. 2002).

9 For example, in Minnesota Mining & Manufacturing Co. v. Chem-

que, Inc., 303 F.3d 1294, 1308 (2002), cert. dismissed, No. 02-828 (Apr. 9,

2003), the Federal Circuit held that the on-sale bar was not triggered

where no “sale-related information was sent with the samples.” See ibid.

(“In this case there is no testimony or evidence in the record that price

quotes were actually sent to customers in any particular instance.”).

Under pre-Group One case law, the delivery of a sample without other

sales-related information likewise did not trigger the on-sale bar. Cf. Intel

Corp., 946 F.2d at 829 (distribution of sample to sales staff but not

customers does not trigger the on-sale bar).

product may be nothing more than an invitation for offers,

while responding to such an invitation may be an offer.” 254

F.3d at 1048 (citing Restatement § 26). But that portion of

the Group One decision is also consistent with previous

Federal Circuit case law. No earlier decision of the Federal

Circuit appears to have held that advertising always

constitutes a “definite offer” that would trigger the on-sale

bar. Instead, the Federal Circuit’s case law emphasizes that

in certain circumstances a particular advertising may trigger

the on-sale bar. See, e.g., In re Theis, 610 F.2d 786, 790, 791-

792 (C.C.P.A. 1979) (statement in press release at trade

show stating that “deliveries are being made this month”

was “strong evidence” that product was on sale). The prin-

ciple that advertising can, at times, result in a commercial

offer for sale is fully consistent with traditional contract-law

principles. See, eg., 1 Lord, supra, at 294 (“Though the

general rule is that an advertisement, circular, price list,

quotation or the like is not an offer, there is no doubt that a

positive offer may be made even by an advertisement or

‘other similar general notice.”); Restatement § 26 (“It is of

course possible to make an offer by an advertisement di-

rected to the general public.”).

Indeed, whether the distribution of samples, advertising,

or trade show activities place an invention “on sale” may

well vary from industry to industry. See Lacks Indus., Inc.

v. McKechnie Vehicle Components USA, 322 F.3d, 1335,

1347-1348 (Fed. Cir. 2003). The Group One court empha-

sized that “any given circumstance * * * requires looking

closely at the language of the proposal itself.” 254 F.2d at

1048. Similarly, legal commentary discussing the on-sale bar

has long emphasized that the meaning of certain commercial

activities—i.e., whether an invention is “on sale”’—may well

vary from industry to industry. See, e.g., Patrick J. Barrett,

New Guidelines for Applying the On Sale Bar to Patent-

alnlity, 24 Stan. L. Rev. 730, 740 (1972) (“[A]n offer to sell

may vary from industry to industry. Thus, displaying a

sample in one industry may represent nothing more than the

showing of an interesting idea * * * [while in other

settings] even an advertisement for a product that does not

yet exist is considered an offer to sell.”).

A similar contextual analysis applies to whether the

receipt of purchase orders triggers the on-sale bar. In some

circumstances, the receipt of the purchase order may

confirm that a definite or formal offer was made. In Pfaff,

for example, the customer placed an oral purchase order for

30,100 sockets, and then provided the inventor with a

written confirmation of the purchase order. 525 U.S. at 58.

The course of dealing between the customer and inventor

established that the inventor had solicited and accepted the

order by the time that the inventor received the written

confirmation. See id. at 59, 67, 68. In other circumstances,

the fact that a vendor received a purchase order may be

insufficient to establish that the vendor solicited or accepted

an offer. In this case, for example, the court of appeals found

that, although the respondent received purchase orders,

respondent did not accept them until after the critical date.

See Pet. App. 18a-22a. The court of appeals reasoned that “a

reasonable offeror in the distributors’ position who received

an acknowledgment that—unlike those for the unambigu-

ously-accepted orders—explicitly states that the order for

the LT1070 was ‘NOT BOOKED,’ would understand that

[respondent] had not booked and therefore had not accepted

the order.” Id. at 20a.

In short, traditional contract principles themselves take

into account differences in industry practice and context.

Accordingly, a shift from the totality-of-the-circumstances

approach to an inquiry into whether there is a commercial

offer for sale under traditional contract law principles is not

the radical shift in approach that petitioner suggests. More-

over, to the extent the Federal Circuit reformulated its

approach in terms more consistent with this Court’s Pfaff

decision, that reformulation does not warrant this Court’s

plenary review.

D. The Federal Circuit’s Decision Is Unlikely To Result In

Improper Extension Of A Patent’s Duration

Petitioner expresses concern (Pet. 20) that the Federal

Circuit’s interpretation of the on-sale bar unfairly permits

inventors to postpone informing the public of their inven-

tions, thereby enabling them to extend the duration of their

patent monopolies. In some contexts, the courts may be

justifiably concerned that a particular construction of the

patent laws may result in unwarranted patent extensions.

But on the other hand, this Court recognized in Pfaff that

there are virtues in granting the inventor some ability to

“understand and control the timing of the first commercial

marketing of his invention.” 525 U.S. at 67. In any event,

the many and varied pressures to file patent applications as

soon as possible make it very unlikely that an inventor would

consciously delay filing a patent application for the sole

purpose of postponing the critical date under the on-sale bar.

Generally, an inventor seeks to receive a patent quickly in

order to obtain competitive advantage and licensing reve-

nue, as well as to attract investment capital. In addition, a

delay in filing increases the universe of prior art that can be

used against a patent application to show that the invention

was either anticipated or obvious.’® Moreover, a delay in

filing may permit someone else to file an application in the

United States that covers the same invention, thereby possi-

bly causing the patent applicant to establish his own priority

in a sometimes costly and time-consuming interference

more than one year prior to application filing constitutes prior art. 35

U.S.C. 102(b). The longer the inventor delays filing, the more such prior

art becomes available against the patent.

proceeding.’ For applicants interested in foreign protec-

tion, the pressures to file a patent application quickly are

even greater. In first-to-file ceuntries—the vast majority of

the rest of the world—a patent is awarded not to the first

person to invent, but to the first person to file a patent

application.”

Thus, petitioner’s concern that the Federal Circuit’s

current approach to the on-sale bar might improperly extend

the duration of patents appears overstated and does not

provide a basis for this Court’s review.

E. The Federal Circuit’s Approach To The On-Sale Bar

Continues To Evolve

The Federal Circuit has not adopted a rigid approach to

the application of Section 102(b)’s on-sale bar. The court

expressly observed in Group One:

We do not mean to suggest that it will always be easy

to ascertain whether a set of interactions between

parties constitutes a commercial offer to sell. Nor do we

propose to offer rules or even binding guidance for

11 Tn the so-called interference proceeding to determine which of two

(or more) inventors is to be awarded a patent on the same invention, see

35 U.S.C. 135(a), the party who filed second is deemed the “junior” party

and must establish a conception date before that of the “senior” party by a

preponderance of the evidence, or, if the senior party’s patent issued

before the junior party filed, by clear and convincing evidence. 37 C.F.R.

1.657. The shift in the burden of proof is often outcome determinative, and

in any event increases the cost of the interference proceeding to the junior

party.

12 Because the Paris Convention recognizes a right of priority to the

first patent application filed in a member country, the first patent appli-

cation filed in a member country effectively establishes the inventor’s

filing date for all member countries. See Paris Convention for the

Protection of Industrial Property, Mar. 20, 1883, 25 Stat. 1372 (as revised

by Convention at Brussels, Dec. 14, 1900, 32 Stat. 1936; Convention at

Washington, June 2, 1911, 38 Stat. 1645; Convention at the Hague, Nov. 6,

1925, 47 Stat. 1789; Convention at London, June 2, 1934, 53 Stat. 1768;

Convention at Lisbon, Oct. 31, 1958, 13 U.S.T. 1; Convention at Stockholm,

July 14, 1967, 24 U.S.T. 2140, and as amended, Sept. 28, 1979) art. 4.

ON a eae aera

making such determinations, which offer would be little

more than obiter dicta.

254 F.3d at 1048. Furthermore, the Federal Circuit in-

dicated in this case that it would supplement traditional

contract-law principles when issues unique to the on-sale bar

arise. In holding that the acceptance of the purchase orders

for the invention occurred after the critical date, the court of

appeals below observed that “under the UCC, a valid

contract can be found even if the court cannot pinpoint the

exact time of its formation, UCC § 2-204(2), but this rule—

however laudable in the commercial setting—cannot relieve

the court in an on-sale bar setting from ascertaining if a sale,

or an offer for sale, has been made before the critical date.”

Pet. App. 18a. Thus, the Court recognized that, in discarding

its prior totality-of-the-circumstances test, it would never-

theless need to continue to refine and adapt the principles

governing the on-sale bar inquiry.

Ultimately, the Federal Circuit’s decision in this case, as

well as its other recent related decisions respecting Section

102(b), may be properly viewed as steps in an on-going

process to articulate and further refine the proper appli-

cation of the on-sale bar. In light of the guidance that this

Court has recently provided through its decision in Pfaff,

there is no compelling need for this Court to revisit that

relatively narrow issue of patent law at this time.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. McCCALLUM, JR

Assistant Attorney General

PAUL D. CLEMENT

JAMES A. TOUPIN Deputy Solicitor General

General Counsel JEFFREY P. MINEAR

JOHN M. WHEALAN Assistant to the Solicitor

Solicitor General

THOMAS W. KRAUSE snes 7 ——

RAYMOND T. CHEN

JOHN FARGO

Associate Solicitors

Patent and Trademark -- S. DAVIES

Office torneys

APRIL 2003

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.