us we benefit having district judges sit with us not only on the assistance with their caseload but also the experience of being a trial judge for those of us solutions against sea change number two thousand and seven eleven sixty three my name is john warner i'm here on behalf of medical solutions inc or m s i the district court in the district of columbia has personal jurisdiction over the apparently sea change in this case you see changes presence here in d c and its use of the infringing article here in d c three points support personal jurisdiction based on those facts factual inferences are to be resolved in m s i e favor the district court in this case applied its own law rather than the federal circuit case law and it's not clear that the the factual result in example i would prefer the court to join appendix one seventy seven showing the one of the articles in use it shows that the article is  has a solution in it it shows the syringe for dispensing it which would be used for a patient shows a sterile blanket over the device that picture you can also see in the central area once again the blue drape of the orange or the purple all above that is is in layman's terms basically a medical version of a turkey based the solution is taken out of the bowl and applied to the salute what what's going on in these pictures are they actually that they it is the machine functioning here are they merely displaying the way the machine looks if you take it it is it is our understanding based on our employees visiting the show and viewing these photographs that it's actually being used ok now where did you say that to the district cour one sixty nine to one seventy three he specifically again where this he described exactly what's going on in paragraph ten he talks about that it was told at the or a or in meeting that was demonstrating the equipment at that was similar to medical equipment straining equipment is preventing i mean if if i  show you a device i could be said to be demonstrating the device but i could also be said simply to be displaying th device is there anything more specific that would distinguish between simply displaying the device and using the device in the sense that you are operating the device in the manner that it is intended to be operated well you raise a number of issues in that question and starting in the last one first the manner in which the device intend to operate goes to basically what is the claimed invention at the time of discovery there at the time a complaint being filed and jurisdictional allegations being made the claims have not yet been interpreted nor has the infringement analysis been made by the court so the question of what is it its intended purpose is not and not before the court at that particular time or if it is then that basically collapses upon the district court judge the market and to find out what the claim says seems to say to me as i've heard by word of mouth that someone there was someone there who was demonstrating equipment and manpower even giving that and inference on any us thing that we concluded that this demonstrated to the district court that someone was actually demonstrating it i mean all this the i heard by word of mother but there was someone demonstrating it doesn't prove that he was that doesn't prove in any way shape or form in my view that he was demonstrating it and just to finish the question and then you can respond and the only thing i see in you site near braves paragraphs ten to sixteen the closest i thought the language in those paragraphs kane wasn't paragraph fifty where it says he showed me how you could take the bass and up the device but aside from tell we could not tell from the from this presence at the trade show if the elec d is wrong because they were covered up by the of the blanket but if you can see for example appendix one five four that's it rather than showing how it's used so there is a difference between first of all look at the cab are there displaying and they were demonstrated i would suggest and that's been a point of contention in many cases before  courts are focused on one being a passive act and the other one being an action demonstrating actually but with the demonstration with holding it up i mean you know i'm not sure that that trying to parse the words that finely is is really fair to the district judge if you don't describe it in more specific terms exactly what's going on well one is use and one is showing so there is a difference and in the actual act activities that are going on one is simply the blackberries on the on the table top for example well the verses pushing the buttons and saying hey look what happens you can get internet access that's demonstration versus display so i would say i suggest that there is a difference and the difference is the one is an active one is a passive to two points or one is what is being used and as i explained earlier it's the claimed invention the claimed invention at the time of jurisdiction has not been established by district court at that meaning is that a term is what it limitation is their intended use them at asian however in the facts of this particular case there are the claims for example which are part of the record do not have limitations on intended use a hospital in the lower right hand corner of the device just below the drape you can see that there are what we do it's not really clear since you don't really know what the pictures show but if you look at the just below the the  drape and what perhaps is a bag that the woman is holding there there is a what appears to be a bottle or container inside a bitch eating chamber below the drapers the non sterile environment that's the whole point of the drape is to delineate between the opera fortune which star and the lower portion of fortune which is non star of the heating of the object or is the claim talks about in the claim was not before the district court but hidden in that object is in a non sterile environment and can be extremely operated in that on the floor betrayed so the answer to your question is yes and the picture shows a device having a an item inside the one of the hitting devices were being demonstrated to customers and you have to bear in mind that many cited not take these pictures nor did they provide the captions these are sixteen just captions about the  present time to answer your question is yes the court could look at and see these people or customers but for trying to answer your question judge writes in the rich judge approach to the issue of what evidence about that level of detail was also our concern we have that information we made the best the best that we could based on these in from at this information the activity shown there you also know there's a fluid in the device the y and what he was told you can see that the device has a bottle in the warmer for warming and that's at the lower just below the curtain on a one five or so warming so that that is that is what we have at the present time observations and photographs which put together showed that they were using this equipment even on the floor of the trade china at the same promise as just p distinction here maybe in the in the way the words are used but you use the example of the blackberry if i were to take out my blackberry not turn it on but demonstrate to you how easy it is to push the buttons and to two points in response first it goes back to my original quote point of use of what what's what are the claims in the example of a blackberry will soon that the claims are to what system and all you're showing is that is the user interface here at the keyboard or alternatively if the claims were to a keyboard layout then you were doing what you were doing certainly it would be using it because you were showing exactly what you said the ease of it but i believe you meant for  example words operational just as in the normal blackberry in that sense no because the system is not turned on you're not actually having control over it at that point i'm reasonably splaying it but i am demonstrating how it would be used not because it's not you're not you're showing how you could touch the keypad but you have not been able to use that functionally to send a message to the supers that it was intended to be used or even to see how clearly the screen  you know without your glasses for example that's all you're doing is displaying it and filling around with it i would say and non legal terms been displaying in fiddling around yes but not to demonstrate it because demonstrating takes an action takes the vise and actually uses it well if i put it down on a pet's stack of papers i would be using it in a rough census paper way but i wouldn't resume using it for the purpose it was intended to be used for exactly so is that the but why is it materially different from demonstration at a trade show where this is not hooked up in the context in which it is intended to be used so you assume that there is a context in which it is to be in the lower court m s i argued that sea changes display an arguable demonstration of the prototype of the alleged infringing product constituted both an offer of sale and a use under section two seventy one hey is it your view that in order to should be covered that it can only occur when it's intended in the hospital context where it's used by its intended ed and users mean something in your brief suggested that to me that you were just defining don't believe as you all examined the messiah and their opening argument that merely warming fluids and i trade show would be a use even if the machine were on leave it would need to be in a sterile environment such as in a surgery simply disagree with you for instance that if you entirely use this as intended by the patent doesn't necessarily have to be in a particular environment right if you disagree with us no we still disagree with their position and that preparing the instrument for use is not the same thing as use and as you all pointed out in your question it's an aside the evidence in the record which was submitted by their sales representative a fashionable product demonstrator mr cordell who who inspected the product and discussed the product with sea change the representative didn't provide any information in his declaration that the machine was on or warming through it what he said in his declaration was that the seachange representative described to him how the unit would warm medical fluids in a sterile setting he discussed with him the advantages of the product and he demonstrated as you pointed out judge proposed how you would remove the basin arguing that sea changes demonstration constituted a use m s i argues that the district court failed to apply a totality of the circumstances test however neither the supreme court nor the school have adopted the totality of the circumstances attempt to broaden the definition of infringing use in order to capture defendants who had diverted sales or otherwise profited unfairly at the patent owners expense without actually placing an invention into service the ninety six amendments by adding offer to sale made it therefore unnecessary and inappropriate for lower courts to continue stretching the definition of use to include sales related activity but does  does that distinction matter to the result in this case it does because here they've argued regarding possible sales that occurred months after the conference and they're also organ that they are entitled to have or that the district court abused its discretion in denying their motion for discovery but the discovery that they were seeking in the district court related to sales activity and sales activity post the ninety six amendments isn't related to how you define use it might const does that the record here show about the extent of the sales of this device not in the district on pm but in other jurisdictions there's some allusion to tent or at least received it and one was actual salem when it was just an evaluation and tempt one of those hospitals contacted sea change after somebody at the hospital heard about the sea change brought it from somebody else you happen to have seen it and that contact occurred months after the conference the other hospital at issue contacted sea change directly through its website i forget how many months but it was three or four five months after the comp and those prototype of the unit that was at the conference the representatives of the conference had no pricing information there was no sales information while attendees were able to leave their contact information at the booth no of the scope of activities that can constitute an infringing use of an invention under seventy one a broad it is not boundless and as the supreme court explained in the bauer decision to constitute use the invention must be put into service and in determining what it means to put an invention into service the score treatises and other courts look to the purpose of the invention and that is an invention is used in the sense of an infringement when the accused invention for its underlying beneficial purpose or function so your view is that a demonstration even if it's entirely complete use of the device in the demonstration outside of the contents of its normal use of can never be that your view it's not actually i think that you can think of examples where it would be a demonstration and also a sign for example so it doesn't have to be used for its intended purpose and context it depends on what the intended purpose is in this case the accused product in the invention at issue is technology that warms medical fluids and medical equipment in a sterile environment such as a surgery but i can think of a possible product that could be used at a trade show and also demonstrated for example suppose you have an invention that involves a new fangled hangar for hanging very helpful very heavy objects on a wall and you take that to a trade show and you hang up large really heavy clear glass but you're something that you can see through and in that situation the for processing oil or something you know it turns out that they they could use this this particular device in their in their shops and they buy  use because that's not intended purpose of this piece of equipment as explained in the patents and as explained in the pleadings in the lower court in the briefs in the case so if it were used in not in hospitals for patients human patients but instead were used in treating animals it wouldn't be use chain animals in a search in a sterile environment it may be but using it for example to warm water to warm up your left overs from last night would not be infringing you under our definition of use because that is not for the intended benefit and purpose of the invention in discussing the evidence that's in the record as to whether or not there was a view for not a use of the invention and mention that the m s i representative was at the conference for three days he was a professional demonstrator he  all the interaction with sea change in the it and even in disgust and even inspected the product but yet there is no evidence in the record cemented by m s i or even an allegation to confront sea changes on contradicted affidavits that the invention was used during the conference to warmer control the temperature of medical or surgical fluids in the feral environment simply that interim temp was not used during the conference for the invention underlined beneficial purpose or function therefore it was not in use under the definition under section two so me wanting with respect to jurisdictional discovery on appeal m s i argues that the district court abused its discretion in not allowing him a side to take discovery into how the change actually demonstrated the enter temped at they aren't conference the district did not abuse its discretion in trying the mission and s i failed to meet its burden of showing the discovery with warrant and moreover had the requested discovery been infringing use under suit seventy one day there's nothing in the record to suggest that enter attempt was used during the conference for the inventions underlying beneficial use or purpose and fee changes presented evidence showing that the invention was not used during the allegations to support personal jurisdiction were not infringe meant that just personal jurisdiction and in the a joint appendix the just records of when you're at a five the district court makes  statement that the defendant does not dispute that it demonstrated and provided information to attendees regarding the alleged infringing products so with respect to the district court it knows that the defendant doesn't dispute it so the factual record in french with respect to demonstration of use should result in our favor with respect to infringing use and intended use they were the beneficiaries of it while it is not before the district court because we weren't happy in the midst of the mark and proceeding and no claims have been asserted that time specifically in the record before the court of our claims for example at record eight or join a forty four of one of the patents that sued the zero six seven patent our claims thirty five and thirty six neither of which have any reference to medical items star items patients  it could in your example your honor with respect to jiffy lube if they did use this device they would infringe our class so the goes back to my point that when you're using this intended use beneficiary it basically for another example of claims that are not limit it to intended use or beneficiaries as in the tourney argument before this court is a six want to claim twenty eight also talks about a temperature control system that's not limited to medical items of sterling vironment and that is your question earlier could this be used on a trade show floor responded the pens upon what the invention is the answer is yes it could be even if it was medical items as other claims showed in the pictures where it was being used at least as hard to standing to heat the one sterile bottles of fluid that would be provided to a patient hearing is at the seat of the jurisdiction if we follow it if this court adopts the district court's interpretation yet or changes yes because i was the district court going to know what the intended use is what is the invention you know is there a limitation for an intended beneficiary that that is all premature at the jurisdictional stage here we have been in the district court noting that the demonstration blackberry case where this court that not restrict use but expanded it where to consider factors that would normally or have been outside the scope of the geographic scope united states where the benefit where the user you're using your blackberry or would gain the benefit of the functionality that was occurring outside so that the genesis of this is intended use or beneficial use is in that case and that's not apply here at all because we don't have the facts here there's no question that the washington convention center is down the street from here we're in the united states that's not that's not before the court if the court were to adopt the demonstration is controverted at the time or hasn't so the tort occurred here the defendant was here and that we've proved submit is sufficient for prime with asia personal jurisdiction