By Bryan K. Wheelock, Principal
In Liberty Ammunition, Inc., v. U.S., [2015-5057, 2015-5061] (August 30, 2016), the Federal Circuit reversed the Court of Claims decision that that ammunition rounds used by the United States Army embody the claims of Liberty Ammunition, Inc.’s U.S. Patent No. 7,748,325 without authorization, violating 28 U.S.C. § 1498.
At issue was the construction of the term “reduced area of contact” in a claim for an improved bullet. The Federal Circuit said there are no clues within the claim itself as to what the area of contact has been reduced from, but found that the specification saves the term from indefiniteness, explaining that the projectile has “a reduced contact area as compared to conventional projectiles. This raised the question, “what constitutes a conventional projectile?” The Federal Circuit again found the answer in the specification: the M855 round, the only conventional projectile mentioned in the specification. The Federal Circuit allowed that contact area was dependent on size, so the Federal Circuit broadened the corresponding caliber NATO standard-issue round as of October 21, 2005.
The Federal Circuit criticized the Court of Claims’ construction, which did not tie the reduced area to the NATO rounds. The Federal Circuit further observed that would not be definite had the trial court’s construction been correct because there would not be a sufficient objective boundary around the term of degree “reduced area of contact.” The Federal Circuit said a term of degree fails to provide sufficient notice of its scope if it depends on the unpredictable vagaries of any one person’s opinion.
The Federal Circuit also rejected the Court of Claims’ construction of “intermediate opposite ends,” which, because it was lead by the term “including,” the Court of Claims found could extend to the ends. The Federal Circuit has many times warned against using terms such as “comprising,” or “including,” as “weasel word[s] with which to abrogate claim limitations.” The Federal Circuit noted that the Court of Claims’ construction goes against these admonitions and significantly diminishes the “intermediate opposite ends” limitation, almost to the point of rendering it a nullity.
Because the accused Army rounds meet neither the “intermediate opposite ends” limitation nor the “reduced area of conduct” limitation — one of which appears in all asserted claims — we hold that the Government has not violated Liberty’s patent rights under § 1498.