INFILTRATOR SYSTEMS, INC. and STORMTECH, INC. v. CULTEC, INC. and ROBERT J. DITULLIO

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

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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.
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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

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