                  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit

                                         05-1375

                INFILTRATOR SYSTEMS, INC. and STORMTECH, INC.

                                                 Plaintiffs-Appellees,

                                            v.

                       CULTEC, INC. and ROBERT J. DITULLIO,

                                                 Defendants-Appellants.

                             _________________________

                               DECIDED: March 21, 2006
                             _________________________


Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.

MICHEL, Chief Judge.

      Cultec, Inc. and Robert J. DiTullio (collectively, “Cultec”) appeal the decision

denying their motion for a preliminary injunction in this patent infringement case.

Infiltrator Systems, Inc. and Stormtech, Inc. (collectively, “Infiltrator”) manufacture and

sell an allegedly infringing product, a drainage chambers system. This product has

been manufactured and sold in two different versions: the version currently

manufactured and sold (the “new chambers”) and the version previously manufactured

and sold (the “old chambers”). Both parties agree that only the old chambers are at
issue in the infringement aspect of the case.1 Cultec moved for a preliminary injunction

to prevent Infiltrator from manufacturing, selling, or offering to sell the old chambers.

       On the basis of the briefs submitted by both parties and oral argument by both

parties, it appeared that Infiltrator was no longer manufacturing, selling, or offering to

sell the old chambers. After oral argument, this Court issued a Show Cause Order to

show why this case should not be dismissed based on mootness due to lack of the old

chambers, the only allegedly infringing product at issue in this case.             Both parties

replied with letter briefs and sworn affidavits from a responsible officer with knowledge

of the relevant facts.

       Based on those letter briefs and affidavits, this Court has determined that the old

chambers are no longer manufactured, sold, offered for sale, or inventoried and will not

be manufactured or sold in the future. In Infiltrator’s letter brief, Infiltrator stated that this

appeal “should” be dismissed for mootness. Indeed, Infiltrator “agree[d]” that the appeal

is “limited to the . . . Old Chamber” and “concede[d]” that the appeal is therefore “moot.”

Bryan Coppes, a Vice President of Infiltrator, averred to this Court in his declaration in

support of Infiltrator’s letter brief that: (1) Infiltrator has “not manufactured the Old

Chambers since at least approximately three [ ] years prior to the date of this

Declaration,” (2) “[t]he last sale of Old Chambers occurred on or about January 21,

2003,” (3) Infiltrator “scrapped [its] last remaining inventory of Old Chambers on or

about August 11, 2003,” and (4) Infiltrator “ha[s] no Old Chambers in inventory.”




       1
               In its letter brief, Infiltrator “seek[s] to clarify” that the new chambers are
still at issue with respect to its claim that Cultec is “falsely claiming that the New
Chambers infringe” the patent at issue. In this opinion, we do not address these alleged
false claims, as they were not appealed.


05-1375                                         2
      In its letter brief, Cultec asserted that Infiltrator is still offering to sell the old

chambers by providing marketing brochures and installation instructions for the old

chambers on its web site. We do not find this evidence to constitute an offer to sell the

old chambers. First, it appears that the installation instructions were maintained on the

web site to aid users who had already purchased the old chambers, rather than to offer

to sell the old chambers to new customers, especially in light of the averment by one of

Infiltrator’s officers that the remaining inventory of the old chambers was scrapped in

2003. Moreover, given this averment, it is implausible that the marketing materials are

being used as an offer to sell, either. Second, Cultec conclusorily states that these

materials constitute an offer to sell without citing any case law to support its argument.

Indeed, Cultec does not even bolster its bare assertion with attorney argument.

      In conclusion, because the only allegedly infringing product at issue in the patent

infringement aspect of this case is no longer being manufactured, sold, or offered for

sale, and will not be in the future, this Court dismisses this appeal of the denial of

Cultec’s motion for a preliminary injunction because there is no live case or controversy.




05-1375                                      3
