No sales? Doesn't matter. Offering to sell is still patent infringement.

Del Zotto Products of Florida makes building forms and precast concrete products. Its Gold Rock blocks include a protruding lifting device on the top surface, and a recess on the bottom surface. It is possible to position the Gold Blocks, one on top of the other, using the lifting device and recess to align the blocks. Problem is, Stone Strong, LLC owns a number of patents directed generally to concrete blocks which have a lift loop on the top of the block which fits into a recess in the bottom of the block above to assist with aligning blocks. Stone Strong sued for patent infringement.

Del Zotto argued that: (1) it never sold the Gold Rock blocks (although it had built a wall using these blocks at its facility in Ocala); and (2) the lifting hook on the Gold Rock blocks is not used for aligning blocks.

After a non-jury trial, the Court concluded that the Gold Rock infringes:

The key factor in resolving this determinative issue is the size of the recess or notch on the bottom of the blocks in relation to the size of the lift loop on the top of the blocks. Obviously, as the tolerance between the two features increases, the efficiency of the alignment function rapidly decreases to a point that it becomes nonexistent. Clearly, however, a notch or recess that is one foot wide at the bottom, decreasing to 9½ inches at the top, with a height of 5 inches receiving a steel loop 4 inches in diameter, provides a capability of being used as an aid in alignment, and the claims of the patents in suit (as previously quoted) were literally infringed when Del Zotto offered to sell its Gold Rock forms and blocks. See Bell Communications 10 Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 622-23 (Fed. Cir. 1995) (“[A]n accused product that sometimes, but not always, embodies a claimed method nonetheless infringes.”); Paper Converting Mach. Co. v. Magna-Graphics Corp., 745 F.2d 11, 20 (Fed. Cir 1984) (“[I]mperfect practice of an invention does not avoid infringement.”); Roche Prods., Inc. v. Bolar Pharmaceutical Co., 733 F.2d 858, 861 (Fed. Cir. 1984) (“Section 271(a) prohibits, on its face, any and all uses of a patented invention.”).

And it didn't matter that Del Zotto never actually sold any of its Gold Blocks. Patent infringement protects against unauthorized using, making offering to sell, and selling a patent invention.

Injunction to be entered in favor of Stone Strong.

Stone String, LLC v. Del Zotto Products of Florida, Inc., Case No. 5:08-CV-503, slip op. (M.D. Fla. Oct. 25, 1010) (J. Hodges)