Four cases being argued at the Federal Circuit in October attracted amicus briefs. One of these cases is Arlton v. AeroVironment, Inc. In this patent case, Paul and David Arlton seek reversal of a district court’s summary judgment ruling “that Plaintiffs’ claim for patent infringement is barred by [28 U.S.C.] § 1498,” as well as reversal of a denial of their motion for leave to file a first amended complaint. This is our argument preview.
In their opening brief, the Arltons argue “the district court misinterpreted [a] statute, misapplied [the Federal Circuit’s] case law, and misconstrued the Government’s freedom of contract as absolute.” According to the Arltons, “[t]hese errors, individually and collectively, led the district court to conclude that . . . the Government was not obligated to contract with” their company. And, “[b]ecause this conclusion cannot be sustained,” they argue, the Federal Circuit “should reverse the district court’s recognition of the Government’s purported consent and hold that AeroVironment is not immune from suit under [28 U.S.C. §] 1498.” Moreover, the Arltons argue, the district court incorrectly applied the “de minimis” exception. They contend the district court extended it “to cover governmental, i.e., commercial, uses of the Arltons’ technology,” which is contrary to law. Lastly, the Arltons contend that the district court erred in denying a motion for leave to file a first amended complaint because to meet the court’s requirements the Arltons would have to “bring claims before they were procedurally or substantively ripe.”
In its principle and response brief, AeroVironment argues the district court correctly granted summary judgment because “a patentee’s sole remedy for use or manufacture of a patented invention for the government” and with the government’s consent is by an action against the United States in the Court of Federal Claims. AeroVironment goes on, arguing that the district court correctly denied the Arltons’ motion for leave to amend their complaint because the Arltons filed it more than a month late and “failed to show good cause for their tardiness.” Lastly, AeroVironment contends the district court erred in denying AeroVironment’s motion for attorneys’ fees because the Arltons repeatedly pressed claims that were plainly barred by Section 1498.
In their response and reply brief, the Arltons maintain the government does not have “absolute freedom of contract” because “exercising this freedom disregards [the government’s] preexisting contractual and statutory obligations.” They further argue “AeroVironment does not so much as acknowledge the question the Arltons present.” Lastly, the Arltons contend, the United States’s amicus brief “creat[es] a new question: can retroactive consent by the Government to the manufacture of Terry also retroactively render that manufacture ‘for the Government’?”
In its cross-appeal reply brief, AeroVironment contends it is entitled to its attorneys’ fees because “the Arltons have shown that nothing short of a fee award will deter them.” AeroVironment argues the district court erred by failing to consider “the totality of the circumstances,” suggesting that, “as a whole, the record shows that this is an exceptional case.”
An amicus brief was filed by the United States in support of AeroVironment and affirmance. The government argues the district court “correctly held that 28 U.S.C. § 1498(a) shields AeroVironment from patent-infringement claims relating to the manufacture or use of the Mars helicopter.” According to the brief, AeroVironment’s work was carried out with the government’s express approval. The government emphasizes that “AeroVironment developed the helicopter pursuant to NASA subcontracts that explicitly provided the government’s authorization and consent for the use of any patented technology.” The United States further advocates for an interpretation of the relevant statutory provision that “also covers allegedly infringing activities that are closely associated with a contractor’s work for the government.”
Oral argument is scheduled to be heard on Monday, October 6 at 10:00 am. The argument is scheduled to take place at Suffolk University Law School as part of the Federal Circuit’s sitting in and around Boston while concurrently holding its regular session in Washington, D.C., as we announced here.