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The Leaky Common Law: An 'Offer to Sell' as a Policy Tool in Patent Law and Beyond

53 Pages Posted: 23 Mar 2012 Last revised: 2 Jan 2015

Lucas Osborn

Campbell University Law School

Date Written: March 21, 2012


Gone are the days when the term “offer” is confined to first-year contracts courses and the intricacies of contract formation. The offer concept has quietly migrated throughout the law. It now regulates behavior in areas as diverse as criminal law, environmental law, securities law, and intellectual property law. Despite its wide diffusion, the offer concept remains largely unstudied as a legal concept outside of its contract-law environment. This Article begins to fill that gap.

The Article begins by deconstructing the meaning of a traditional contract-law “offer” to determine its policy role in contract law, and then compares that role with offer concept’s roles in other areas of the law. Next, the Article compares the offer concept’s policy role in each area of the law to its corresponding definition therein and discusses any inconsistencies between the policy role and the definition. The Article then focuses on patent law’s use of the offer concept to regulate patent infringement and provides two primary analyses: (1) a normative analysis of the offer concept’s optimal definition in patent law and (2) a statutory analysis of the relevant statute. On the basis of the policy and statutory analyses, the Article shows why the current court-generated definition of patent law’s offer concept should be improved. The Article concludes by providing suggestions for improving the use of the offer concept in patent law and the law more generally.

Keywords: offer, offer to sell, on sale, contract, patent, trademark, Lanham Act, intellectual property, infringement, policy, statutory interpretation, statutory construction, criminal law, environmental law, securities law

Suggested Citation

Osborn, Lucas, The Leaky Common Law: An 'Offer to Sell' as a Policy Tool in Patent Law and Beyond (March 21, 2012). Santa Clara Law Review, Vol. 53, p. 143 (2013). Available at SSRN: or

Lucas Osborn (Contact Author)

Campbell University Law School ( email )

United States
919-865-4673 (Phone)

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