Judge Ricardo D. Martinez, a federal judge of the Western District of Washington, recently ruled that under the current patent laws, Amazon is not liable for patent infringement, even though it “enables and fosters a market place reaching millions of customers, where anyone can sell anything, while at the same time taking little responsibility for ‘offering to sell’ or ‘selling’ the products.” Milo & Gabby, LLC v. Amazon.com, Inc., W.D. Wash., No. 2:13-cv-01932-RSM, 11/3/15).
Patent infringement is defined under 35 U.S.C. 271(a) and includes, among other actions, “offers to sell” infringing goods during the term of the patent. Based on the jury’s factual findings, Amazon.com did not manifest intent of a willingness to enter into a bargain that another person would justifiably believe could be concluded through their acceptance
By providing a platform for others to sell and offers to sell, Amazon.com appears to be engaging in the type of behavior that patent law drafters were trying to prevent by adding offers to sell into the infringement statues, which the court described as “generating interest in a potentially infringing products to the commercial detriment of the rightful patentee.”
Through Amazon’s platform, merchants sold knock-off versions that infringed the patented products of Milo & Gabby LLP, namely animal-themed children’s accessories. However, the jury concluded that under the current law, Amazon is not responsible for those actions of the merchants that utilized Amazon for their infringing actions.
However, the court seemed to sentimentally side with Milo & Gabby LLP, stating, “[t]here is no doubt that we now live in a time where the law lags behind technology. This case illustrates that point,” indicating that there may be a loophole in the possibly outdated law.