I. Introduction
Under the Taiwan Patent Act, the exploitation of a patent primarily encompasses manufacturing, offering for sale, selling, using, and importing a product related to a patented invention for the aforementioned purposes.[1] While the meanings of “manufacturing,” “selling,” “using,” and “importing” are relatively straightforward, the scope of “offering for sale” is far less clear. In particular, how does the concept of an “offer for sale” under the Patent Act differ from that under the Civil Code?
 
Using the 2022 Min Zhuan Shang Zi No. 40 Civil Judgment rendered by the Intellectual Property and Commercial Court (IPCC) as its focal point, this article examines the criteria for determining whether a particular act constitutes an “offer for sale” under the Patent Act and analyzes how that concept differs fundamentally from the contract-law notion of an “offer” under the Civil Code. It further explores the legislative rationale underlying these divergent interpretations and discusses their practical implications for patent enforcement and commercial transactions.
 
II. Case Background
In this case, the appellant purchased the accused product, namely the Air Compressor Model LG100S, from a third party through an online shopping platform. During the course of its investigation, the appellant discovered that the appellee had also displayed photographs and the model number of the accused product on its official website. On this basis, the appellant argued that the appellee’s online display constituted an “offer for sale” under Paragraph 2 of Article 58 of the Patent Act and therefore amounted to patent infringement.
 
In response, the appellee relied on the principles of contract law under the Civil Code. It contended that merely displaying product photographs and model information on its official website constituted nothing more than an “invitation to offer” rather than an “offer.” Because Paragraph 2 of Article 58 of the Patent Act expressly refers only to an “offer for sale,” the appellee argued that a plain reading of the statute should exclude an invitation to offer from the scope of infringing acts of patent exploitation.
 
The IPCC ultimately held that the patent at issue lacked both novelty and inventive step. Pursuant to Paragraph 2 of Article 16 of the Intellectual Property Case Adjudication Act (prior to its amendment)[2], which provides that where the court finds grounds for cancellation or revocation of an intellectual property right, the right holder may not claim that right against the opposing party in the civil action, the appellant was precluded from enforcing its patent right against the appellee.
 
Nevertheless, the IPCC expressly rejected the appellee’s interpretation of the term “offer for sale.” It held that displaying product information on a website indeed constitutes an “offer for sale” within the scope of Paragraph 2 of Article 58 of the Patent Act, notwithstanding that such conduct might merely qualify as an invitation to offer under the Civil Code.
 
III. Interpretation Under the Civil Code
Paragraph 2 of Article 154 of the Civil Code stipulates:
“Exposing goods for sale with their selling price shall be deemed to be an offer. However, the sending of price lists is not deemed to be an offer.”
 
Under the Civil Code, an offer is a declaration of intent containing terms that are sufficiently definite and demonstrating the offeror’s intention to be legally bound upon acceptance by the offeree. Once the offeree accepts the offer, a binding contract is formed without requiring any further manifestation of assent by the offeror.
 
For example, suppose Shop A displays a television in its store marked with a price tag of NT$20,000. Under the forepart of Paragraph 2 of Article 154 of the Civil Code, Shop A’s act of displaying the television with a clear price tag constitutes an offer. If Customer B manifests acceptance of those terms, a valid sales contract is immediately formed.
 
By contrast, an “invitation to offer” refers to conduct intended merely to include others to submit offers, rather than to manifest an immediate intention to be legally bound. For instance, if Shop A distributes advertising flyers stating that a television is available for NT$20,000, the distribution of those flyers does not constitute an offer under the proviso to Paragraph 2 of Article 154 (“the sending of price lists shall not be deemed an offer”). Instead, the flyers merely encourage prospective customers to visit the store and submit purchase offers.
 
The fundamental distinction between an offer and an invitation to offer lies in whether the declarant has manifested an intention to be immediately bound upon acceptance.
 
When Shop A displays a television together with a clearly marked price, it objectively manifests its willingness to conclude a sales contract on those stated terms. A customer’s acceptance is therefore sufficient to establish a binding agreement. Such conduct constitutes an offer.
 
Conversely, distributing advertising flyers merely informs potential customers that Shop A is willing to negotiate or enter into sales transactions. The purpose of the advertisement is to attract customers and encourage future inquiries, rather than to create an immediately binding contractual relationship upon a customer’s response. Accordingly, such conduct is properly regarded as an invitation to offer.
 
Because the Civil Code maintains a clear doctrinal distinction between an offer and an invitation to offer, the central legal issue in this case was whether the term “offer for sale” under the Patent Act should be interpreted in accordance with Civil Code principles or instead be given an independent meaning consistent with the legislative purpose of patent protection.
 
IV. Interpretation Under the Patent Act
Unlike the Civil Code, the Patent Act is not primarily concerned with regulating contract formation. Rather, Article 58 of the Patent Act grants patentees the exclusive right to exploit their patented inventions and to prevent unauthorized exploitation by others. Accordingly, the interpretation of the term “offer for sale” under the Patent Act serves a fundamentally different legislative purpose from that of the Civil Code.
 
Although neither the Patent Act nor its Enforcement Rules expressly defines “offer for sale,” the Article-by-Article Interpretation on the Patent Act[3] provides a clear explanation:  
Notably, the IPCC adopted precisely this interpretation in the present case. In reaching its decision[4], the Court cited the foregoing commentary extensively, concluding that the concept of an “offer for sale” under Paragraph 2 of Article 58 of the Patent Act is broader than the contract-law concept of an offer under the Civil Code.
 
The principal legal rationale for adopting this broader interpretation is to shift patent protection forward to an earlier stage of commercial activity. If patentees were required to wait until an infringer had actually concluded a sales contract, or even completed delivery of the infringing products, before asserting their rights, infringing products could already occupy the market and cause irreparable commercial harm. Such a narrow interpretation would significantly undermine the preventive function of patent rights.
 
Accordingly, even where no actual sale has been completed, acts such as displaying product information on an official website, listing products on an e-commerce platform, publishing promotional materials on social media, distributing product catalogues, or displaying products at exhibitions with the objective of promoting sales may constitute an “offer for sale” under the Patent Act. The relevant inquiry is not whether a binding contract could immediately be formed under the Civil Code, but whether the conduct objectively demonstrates an intention to market the product and is capable of soliciting business opportunities.
 
By interpreting “offer for sale” to encompass both offers and invitations to offer, the Patent Act enables patentees to seek legal remedies before infringing products formally enter the marketplace. This interpretation strengthens the preventive function of patent protection and avoids restricting patent enforcement by the technical rules governing contract formation under the Civil Code.
 
This case also illustrates another fundamental principle of patent litigation. To prevail in an infringement action, a patentee must prove not only that the accused party has engaged in an act of patent exploitation under the Patent Act, but also that the patent at issue is valid. Even where the accused conduct constitutes an “offer for sale,” the patentee cannot obtain relief if the patent at issue is ultimately found to lack novelty or inventive step. Patent validity therefore remains the indispensable foundation of every infringement action.
 
V. Conclusion and Recommendations
The IPCC’s decision clarifies that the concept of an “offer for sale” under the Patent Act should be interpreted independently of the corresponding concept under the Civil Code. Whereas the Civil Code distinguishes between an offer and an invitation to offer to determine when contractual obligations arise, the Patent Act adopts a broader interpretation designed to prevent patent infringement at an earlier stage of commercial activity. Therefore, acts that would merely constitute an invitation to offer under the Civil Code may nevertheless amount to an “offer for sale” and constitute patent exploitation under Paragraph 2 of Article 58 of the Patent Act.
 
From a practical perspective, this judgment offers two important strategic takeaways for patentees and corporate management.
 
A. For Patentees: Broader Market Monitoring, but Patent Validity Remains Paramount
Because publicly available information on corporate websites, e-commerce platforms, social media, trade exhibitions, and product catalogues may all constitute an “offer for sale” under the Patent Act, patentees should not limit their market monitoring to products that have already been commercially launched. Instead, they should actively monitor pre-market promotional activities and preserve publicly available evidence at an early stage to facilitate subsequent infringement analysis and enforcement actions.
 
At the same time, this case underscores that demonstrating an infringing act alone is insufficient. Even where infringement can be established, the patentee cannot obtain relief unless the patent at issue is capable of withstanding validity challenges. Before commencing litigation, patentees should perform a comprehensive assessment of the validity of their patent rights to mitigate litigation risks.
 
B. For Product Developers and Vendors: Promotional Activities May Constitute Patent Infringement; Prior Risk Assessment is Essential
In practice, some businesses assume that patent infringement cannot occur until products have been manufactured, commercially launched, or actually sold. Likewise, many believe that merely publishing product photographs, technical specifications, or descriptions on a website poses no immediate patent risks.
 
The present judgment demonstrates otherwise. Because the Patent Act interprets an “offer for sale” more broadly than the Civil Code, any promotional activity that objectively manifests an intention to market or sell a product may fall within the scope of the patentee’s exclusive rights. Therefore, publishing product information on corporate websites, distributing catalogues, launching marketing campaigns, listing items on online platforms, or showcasing prototypes at trade exhibitions may all expose businesses to infringement claims before any actual sales take place.
 
Businesses should therefore conduct a comprehensive Freedom-to-Operate analysis before publicly promoting or marketing new products. Identifying potential patent barriers at an early stage enables companies to modify product designs, adjust marketing strategies, or seek appropriate licenses prior to commercialization, thereby minimizing the risk of costly infringement disputes and subsequent litigation.