CPLRG™ 0034 - Delaware Valley Floral Group, Inc. v. Shaw Rose Nets, LLC - Mar. 11, 2010

Delaware Valley Floral Group, Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374 (Fed. Cir. 2010) (PROST, Bryson & Linn) DelawareValleyFloral03112010

MAJOR ISSUES: on sale bar; inventor testimony on date of first sale of invention

COMMENT:  In patent law precise dates matter.  A patent’s validity can turn on testimony about when events occurred years in the past, such as when an embodiment of a later-patented invention went on sale.  Under 35 U.S.C. Section 102(b), a sale or offer in the United States, whether public or private, more than a year before an application filing creates an “on sale” bar.

BIG ROSES.  The patent at issue concerned a process for producing larger rose heads by using elastic, porous nets. U.S. Pat. No. 5,765,305. USPatNo5765305  The inventor applied for the patent on January 16, 1996, making the critical date for “on sale” bar purposes, January 16, 1995.  In a district court suit on alleged infringement of the patent, the inventor averred in interrogatories that he invented the process and began sales of products in August 1995.  However, in a deposition in 2008, the inventor testified repeatedly that the interrogatory was a mistake and that he had invented the process in and began sales in 1994.  Later, the inventor submitted a declaration and errata sheet seeking to correct his deposition testimony.  The Federal Circuit held that the district court did not abuse its discretion by rejecting the attempted correction and in granting summary judgment.

CROSS REFERENCES.  For a discussion of the “on sale” bar, see Chisum Patent Law Digest 1300, Chisum on Patents 6.02[6].

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