On sale bar met by accused product rather than patentee's product

Takeaway: Invalidation under the on-sale bar of § 102(b) usually involves a sale of the patentee's product. However, the sale can actually be of any product, by any party, as long as it embodies the claims. In Cummings v. Adidas USA, 08 Civ. 9860 (S.D.N.Y 2010), one of the accused infringers raised the on-sale bar defense using its own accused product, and won on summary judgment.

Details: An invalidity defense under the on-sale bar of § 102(b) requires a) sale or offer for sale more than one year before the critical date of b) a product that was ready for patenting at the time of the sale and which c) anticipates the claims. Nike didn't even need to offer evidence that the product anticipated: that burden of proof was satisfied by the patentee's allegation of infringement. All Nike had to do was provide evidence that the accused product was materially identical to the product offered for sale. As for the other two requirements, Nike presented uncontroverted evidence that Nike sold samples of the accused product to showrooms and sales representatives more than one year before the patent's filing date. The court granted Nike's motion for summary judgment of invalidity.