![]() ![]() Evans argues that, based on the totality of the circumstances, a reasonable jury could conclude that "the Najarian 'order' was an advance, non-binding order, cancelable by either party, that was not finalized until after July 1, 1991" and that it was void to the extent that it was an offer for sale. Indeed, even on appeal, Evans states in its brief, directed only to the on sale issue, that "GM uses an aqueous reverse flow cooling system in its LT1 engine."Įvans also argues, in effect, that there was no "sale" or offer for sale of the LT1 engine. Although GM bore the burden of proving that the LT1 engine embodied the patented invention or rendered it obvious for purposes of the summary judgment motion, this burden is met by Evans' allegation, forming the sole basis for the complaint, that the LT1 engine infringes. 8(e) (1997) ("A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses."). GM denied that the LT1 engine infringed the '636 patent but, by conceding infringement for purposes of the summary judgment motion and its on sale defense, properly pled in the alternative. Here, the entire basis of the lawsuit is Evans'-the patentee's-contention that the LT1 engine-the device that was put on sale-contains a cooling system that infringes. This is not the typical case where the patentee has placed some device on sale prior to the critical date and the accused infringer must demonstrate that this device actually embodied or rendered obvious the patented invention. Whether an invention was placed on sale prior to the critical date is ultimately a conclusion of law that we review de novo, although it is based on underlying facts. 1997), must have been embodied in or obvious from the device offered for sale, and the sale must have been primarily for profit, id. In order for a patent to be invalid under this statute, the claimed invention asserted to have been on sale must be substantially completed with reason to expect it would work for its intended purpose, Micro Chem., Inc. 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. A person is not entitled to a patent if "the invention was. We review the district court's grant of summary judgment de novo. The order was transmitted to GM, and GM sent back an acknowledgment on June 14, 1991. ![]() Najarian was informed that the price would be up to $2000 higher than the 1991 model and he placed a deposit on the car at that time. Although a firm price was not established at that time, Mr. Najarian agreed to buy a Corvette with an LT1 engine. Najarian entered into a contract with a GM dealer on Jin which GM agreed to sell and Mr. As a specific example, GM introduced evidence regarding a retail customer named Aram Najarian who visited a Corvette dealer in West Bloomfield, Michigan, in June, 1991. The orders, over 300 of which were placed on behalf of specific retail customers, were placed through a computer network and GM transmitted an acknowledgment back to the dealer after receiving the order. GM produced computer records documenting over 2000 orders placed by dealers around the country for the 1992 Corvette before the critical date. A sales representative at a GM dealership also testified that it was the dealership's common practice to order new cars and enter into agreements to sell new cars shortly after receiving the Guide. A representative of GM testified that it expected the dealers would start ordering the vehicles as soon as the Order Guide was sent to them. At about the same time, GM sent its dealers a supplemental brochure that provided additional ordering information for the 1992 Corvette, specifically stating that the car had reverse flow engine cooling. Specifically, GM sent an "Order Guide" for the 1992 Corvette to its independent dealers in late April or early May, 1991 to be used for ordering the vehicle described in the Order Guide. GM asserted that the '636 patent was invalid because GM and its independent dealers had placed the patented invention on sale prior to the critical date with the introduction of its 1992 Corvette. GM counterclaimed for a declaration of invalidity and non-infringement. In early 1994, Evans filed the present lawsuit alleging that GM infringed the '636 patent by the manufacture and sale of cars having GM's "LT1" and "L99" engines. ![]()
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