Anticipate This!™ | Patent and Trademark Law Blog

Gemmy Industries Corp. v. Chrisha Creations Limited, et al.

Posted in Opinion Commentary by Jake Ward on June 25, 2006

Christmas is Too Commercialized These Days, Don't You Think?

(Fed. Cir. 2006, 05-1110)

The CAFC vacated a summary judgment of invalidity by the district court (S.D.N.Y.), based on the on-sale bar, of Gemmy's U.S. Pat. No. 6,644,833.  Gemmy and Chrisha are competitors in the business of holiday decorations.  The technology at issue is inflatable decorative holiday figures, e.g. large inflatable Santas.

The basic standard, since patents bear a presumption of validity, is that "invalidity based on the on-sale bar must be established by clear and convincing evidence."  Chrisha argued that the accused product was on sale by Gemmy more than one year prior to the application of the patent.  Gemmy argued that the accused products were incompletely developed at that time and that the burden was on Chrisha to show that the product was "ready for patenting" and "the subject of a commercial offer for sale" before the critical date.

Chrisha pointed out an affidavit of Gemmy's president (later modified by declaration), which stated that the product was on sale since before the critical date.  The court disregarded this argument, as they found that the product "offered for sale" before the critical date was not the same as the product claimed in the patent.  Additionally, the court held that evidence of a commercial offer of sale was not met by the "quote sheets" distributed by Gemmy.  As Gemmy argued, there is "not an offer for sale where the communication lacked quantities, time of delivery, place of delivery, or product specifications. . . ."

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