Oral argument of the week: EQUISTAR CHEMICALS, LP v. WESTLAKE CHEMICAL CORPORATION

The oral argument of the week is from EQUISTAR CHEMICALS, LP v. WESTLAKE CHEMICAL CORPORATION, No. 2017-1548 (Fed. Cir. July 3, 2018).  The panel spent most of the hour long oral argument inquiring into the on-sale bar issue.  Questioning got fast and furious at one point with the judges stepping on one another’s questions. Cases discussed included Medicines (en banc), Helsinn, and Plumtree.

The panel remanded the on-sale bar issue back to the district court with instructions to address the following issues:

  1. What were the offers for sale of the product, and when were they made?
  2. Did the offers require the product to be made by the patented method?
  3. If the offers were accepted, was Equistar obligated to supply product made by the patented method?
  4. Before the critical date, did Equistar decide to fill orders with the patented method?
  5. Before the critical date, could orders be filled with products produced by the conventional process or was only product produced by the patented method available?
  6. Was the product produced before the critical date by the patented method made to enable the patentee to make offers before the critical date?

You can listen to the oral argument below:

The opinion is available [here].

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