Joint Appendix One

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2:10-cv-07678-JFW-DTB Document 55-1 Filed 09/28/11 Page 4 of 6 Page ID
#:895
In determining whether an offer is a commercial one, the Federal Circuit
applies general contract principles. Atlanta Attachment Co. v. Leggett & Platt, Inc.,
516 F.3d 1361, 1365 (Fed. Cir. 2008), citing Netscape Commc'ns. Corp. v. Konrad,
295 F.3d 1315, 1323 (Fed. Cir. 2002). The offer must be sufficiently definite that a
party could make a contract by simple acceptance. Id. There can be no dispute
that FutureLogic made concrete offers to Coca-Cola on April 25 and October 18,
1999. Rounds Decl., Exhibits 11 and 16. Both these quotations were for printer
products that embodied the claimed invention that was reduced to practice on
January 21, 1998 and contained price, quantity and other commercial terms, ld.
The October 18 u' quotation was for the VM printer that the inventor Mr.
Meyerhofer described in detail to the Patent Office as his claimed invention, and
Coca-Cola accepted the prototypes offer through two purchase orders. Id., Exhibit
3 at pp. 67-79, Exhibit 5; Meyerhofer Tr. 36:21-37:23, 130:20-133:18, 137:19-
143:5. lit is undisputed that Coca-Cola purchased 24 units at a price of $850 each
and placed them in the field in Cincinnati, Ohio for field testing. Rounds Decl.,
Exhibits 17 and 18, Meyerhofer Tr. 139:-140:6, 143:7-17.
The Court also finds that the 24 units sold to Coca-Cola were in public use.
Coca-Cola placed them in the field and was under no confidentiality obligations to
FutureLogic under the parties' 1997 non-disclosure agreements. Rounds Decl.,
Exhibits 7 and 8. The printers were freely accessible by Coca-Cola personnel and
the public who purchased soft drinks out of the Coke vending machines.
Defendant's -4-
Proposed MSJ
Decision
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