BAE's remedy is against the U.S. government, not Aeroflex
BAE Systems Information and Electronic Systems Integration Inc. v. Aeroflex Incorporated et al., Civ. No. 09-769-LPS, August 2, 2011 (unsealed August 9, 2011).
Stark, J. Plaintiff’s motion to strike affidavits filed in support of summary judgment is denied. Defendant’s motion for summary judgment of non-infringement is granted.
The parties are both involved in the production of IRCM systems for U.S. military aircraft. The focus of the dispute is on 28 U.S.C. § 1498 providing an affirmative defense when the government authorizes its contractor infringing a third party’s patent rights. In such case, the patentee’s sole remedy is against the U.S. government. Plaintiff moves to strike supporting affidavits on the grounds that they go beyond the scope permitted by the court. The court disagreed. Plaintiff insists that only a sliver of the accused conduct was protected under § 1498. The court rejects the arguments that the accused product was not for the government and was not with the consent of the government, finding that the protections of § extend cake to initial allegedly infringing activities.
