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Order Denying Motion for Summary Judgment of Invalidity – Evidence Insufficient to Establish On Sale Bar

Southern Mills, Inc. v. Polartec, LLC, 1:07-cv-00893 (N.D. Ga. May 26, 2011) (Forrester, J.)

Plaintiff Southern Mills brought this suit against Defendant Polartec for alleged infringement of a patent relating to thermal barriers for use in fire resistant garments. In defense, Polartec argued that its predecessor manufactured and sold fleece fabrics, known as Style Nos. 7225 and 7219, having the same construction as the accused products more than one year before Southern Mills’ filed for its patent. Polartec contended, therefore, that Southern Mills’ patent was invalid for anticipation under the “on sale bar” of 35 U.S.C. § 102.

To support its defense, Polartec relied on (i) declarations and deposition testimony from an executive who testified that there was a “high probability” that the fleece fabrics were sold in the late 1980s, (ii) 1984 and 1987 Knitting Specification Sheets containing developmental instructions on how to manufacture the fabrics, and (iii) a 1988 Price List that included Style Nos. 7225 and 7219. Noting that the executive had “no personal knowledge of what products were sold to whom and when” and that the Specification Sheets and Price List were internal documents that did not evidence an actual sale or offer for sale, the Court found that Polartec’s evidence was insufficient to meet the clear and convincing standard for proving patent invalidity:

In sum, the court finds that the Specification Sheets themselves provide no evidence of an offer for sale. They are marked as experimental and even in conjunction with [the executive’s] testimony, there is no indication that these specific fabrics were ever offered for sale. As for the Price List, while this gives some kind of indication of the potential for commercial use, it does not rise to the level of clear and convincing proof that Style Nos. 7225 and 7219 were ever offered for commercial sale. (Page 9.)

Accordingly, the Court denied Polartec’s motion for summary judgment.