Displaying Allegedly Infringing Medical Device at Trade Show Is Not a “Use”

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Despite the dwindling application of an experimental use exception to patent infringement, the Federal Circuit recently found that displaying an allegedly infringing medical device at a trade show is not a “use” under the Patent Act.   Medical Solutions, Inc. v. C Change Surgical (07-1163).

The patented technology was directed to “systems for warming and controlling the temperature of medical and surgical items.” MSI claimed that CCS “actively demonstrated” the accused device at the trade show by showing “how to take the basin off the device when the basin still had fluid in it.”  However, the court found that there was no evidence that the accused device was “used to heat medical items at the trade show.”   Thus, despite an active demonstration of the accused device, it was not being put “into service” sufficient to show use for personal jurisdiction purposes.

This case raises interesting questions about what it means to “use” a device for patent infringement purposes. Does a device need to be used for the purpose it was intended to be infringing? If mere possession of an infringing device is not sufficient to show “use”, in what circumstances does the use of a patented device satisfy the “use” requirement?  — Brenda Simon

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