Temporary Presence in U.S. Defense Prevails

For the first time in its 22-year history, the U.S. Court of Appeals for the Federal Circuit had an opportunity to address the scope of an obscure infringement defense known to as "temporary presence in the U.S." (35 U.S.C. § 272.) In doing so, it overturned the grant of a preliminary injunction. National Steel Car v. Canadian Pacific Railway, LTD., Case No. 03-1256 (Fed. Cir. Jan. 29, 2004).

Canadian Pacific Railway (CPR) is engaged in the shipping of lumber from Canada to various destinations in the United States. National Steel Car (NSC) is a manufacturer of railway cars especially designed to efficiently haul lumber. After NSC lost a large bid to supply CPR with railway cars, NSC sued CPR alleging infringement of NSC’s patent, which is directed to "a depressed center-beam flat car," a design that allows railway cars to carry a volumetrically larger load.