Sevenson Environmental Servs., Inc. v. Shaw Environmental, Inc., ___ F.3d ___ (Fed. Cir. Feb. 21, 2007) (LINN, Dyk) (W.D.N.Y.: Arcara)
KEY WORDS: 28 USC 1498, CHOICE OF LAW, CONTRACT INTERPRETATION
Fed Cir affirms summary judgment dismissing suit because the U.S. government was the proper defendant under 28 USC 1498. Shaw had a contract to perform environmental remediation, and the particular accused technique was proposed by Shaw in a work plan approved by the government, not in the contract itself. Section 1498 applies if the work is "for the government" and "with the authorization and consent of the government." The Fed Cir first determined that "for the government" simply means pursuant to a government contract, and does not require that the "primary purpose" of the contract be the infringing activity, or that the government chose the infringing method. The work was "with the authorization and consent of the government" even though the contract did not require the infringing method, because the work plan (prepared by Shaw) that Shaw was required to follow did require (alleged) infringement. Thus, Shaw had immunity under 28 USC 1498. (The Fed Cir applied its own law to interpret the contract because it was a government contract and it dealt centrally with patents (or at least a small part of it did).)
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