DEMONSTRATION IS NOT NECESSARILY AN INFRINGING USE

Medical Solutions, Inc., v. C Change Surgical Llc, [2007-1163] (September 9, 2008) [ZAGEL, Bryson, Prost] The Federal Circuit affirmed the dismissal of MSI’s patent suit for lack of personal jurisdiction because demonstration of the allegedly infringing device at a trade show did not constitute a “use” under the patent laws.
DISCUSSION: MSI held several patents to protect its technology related to devices that control the temperature of medical and surgical fluids in the operating room. MSI sued C Change, alleging its demonstrations of its competitive system infringed MSI’s patents. The district court found that the demonstration was not a use, and the mere presence of the products without pricing or other circumstances of a commercial offer, did not constitute an offer for sale. Noting the absence of any evidence that the demonstration involved heating of medical items, the Federal Circuit agreed that there was not infringing “use”.