Continued Distribution of Brochures and Instructions Insufficient to Create SJ Jurisdiction

Infiltrator Systems v. Cultec (Fed. Cir. 2006) (NONPRECEDENTIAL).

Cultec, the patent holder, moved for a preliminary injunction, but Infiltrator argued that it no longer manufactured the accused drainage chambers system. Cultec, however, asserted that Infiltrator continued to provide marketing brochures and installation instructions on its website.

The CAFC found that the brochures and instructions were insufficient to create an ‘offer to sell,’ but were merely used by users who had already purchased the old chambers.

Because the only accused product is no longer being sold, the court dismissed the appeal as moot.