The Federal Circuit affirmed a ruling by a district court dismissing an action for induced patent infringement where the alleged direct infringer was the US government.

Astornet Technologies, Inc. owns a patent for “[a]n automated access control system for securing airport vehicular gates and airport sterile areas.”

Astornet sued NCR Government Systems, LLC; MorphoTrust USA, LLC; and BAE Systems, Inc. for allegedly infringing the patent.

Astornet claimed that the defendants had contracts with the Transportation Security Administration (TSA), a US government agency, to supply TSA with certain boarding-pass scanning systems that infringed the patent.

A district court dismissed the cased on several grounds, finding that Astornet’s exclusive remedy for the alleged infringement was a suit against the United States in the Court of Federal Claims under 28 U.S.C. § 1498.

Astornet appealed.

Government Infringement

Under 28 USC § 1498(a), the remedy for a patent owner when the US government allegedly infringes a patent is as follows:

Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof … the owner’s remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture. ….

For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor … for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States.

(Emphasis added.)

The “The”

The circuit court stressed the importance of the word “the” in the statute, as highlighted above:

As indicated by the statute’s use of the definite article in providing “the owner’s remedy” and its statement that the remedy is for payment of the owner’s “entire compensation,” the statute, within its ambit, makes the remedy against the United States exclusive.

The case is Astornet Tech. Inc. v. BAE Systems, Inc.


In patent infringement cases involving the US government or its contractors, plaintiffs can avoid wasting time and money by filing suit in the right court in the first place.

About Us

Leech Tishman’s Intellectual Property Group is based in Pasadena, California with a team of highly-regarded legal professionals with prosecution and litigation expertise in the fields of patent, trademark, copyright, and trade secrets.

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Photo Attribution: “Transportation Security Administration officer screening a bag” by Transport Security Administration –  Licensed under Public Domain via Commons.

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