The appeals court made a ruling based on alleged violation of two specific patent items claimed by Liberty.
Liberty complained that Army representatives violated the terms of the NDAs they signed, which the court ruled invalid as enforceable contracts. This is what allowed the Army to steal the BASIC design of the M855A1 bullet.
Prior to this the Army was developing expensive tungsten-nylon and tungsten-tin core bullets to replace the M855. When Army representatives saw the simple and inexpensive design of the Liberty bullet, they stole the concept.
No, that’s not what happened.
1) True, the first idea for a “lead-free” bullet was just to substitute a tungsten-tin mix for the lead in a regular M855 design. This would leave the penetrator inside the jacket.
2) The Government challenges several of the trial court’s claim constructions. Claim construction seeks to ascribe the “ordinary and customary meaning” to claim terms as they would be understood to a person of ordinary skill in the art at the time of invention. The claims themselves provide substantial guidance as to the meaning of particular claim terms, and therefore “the context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms. But “the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Thus, claims “must be read in view of the specification, of which they are a part.” Basically, patent 7,748,325 has three major claims, 1) it breaks up on impact, 2) it has a reduced area of contact with the bore, and 3) there is an interface portion disposed intermediate opposite ends, that holds the front section to the rear section.
The fact that the bullet breaks up was not taken into consideration as many bullet designs break up on impact, to include the original M855, and most all tracers. So, the case boiled down to two points.
A. “Reduced Area of Contact”
Claim 1 recites an “interface portion disposed and dimensioned to define a
reduced area of contact of said body with the rifling of the firearm.” ’325 patent col. 7 ll. 65–67 (emphasis added). The trial court construed the claim term “reduced area of contact” to mean “the area of contact between the interface and the rifling of the firearm is less than that of a traditional jacketed lead bullet of calibers .17 through .50 BMG.”
Trial Ct. Op., 119 Fed. Cl. at 390–91. The Government argues that the construction should explicitly include the M855 round as a baseline traditional jacketed lead bullet because the M855 is the only prior art projectile explicitly named in the specification. Specifically, the Government urges construing the term as: “the area of contact between the projectile and the rifling of the firearm is less than that of a traditional jacketed projectile, which includes the M855.” The trial court rejected this limitation as too restrictive, relying instead on the specification’s statement that the invention is enabled for “all calibers generally ranging from .17 through [.]50 BMG.”
Id. at 391 (alteration in original) (quoting ’325 patent col. 2 ll. 27–28).
We begin our analysis by recognizing that the term “reduced area of contact” is one of degree, as it necessarily calls for a comparison against some baseline. Terms of degree are problematic if their baseline is unclear to those of ordinary skill in the art. . . . As the trial court correctly noted in this case, “[t]here are no clues within Claim 1 itself as to what the area of contact has been reduced
from.”
The Background of the Invention section first narrows the ambiguity by disclosing that the patent’s proposed projectile has “a reduced contact area as compared to conventional projectiles.” The question then becomes: What constitutes a conventional projectile? Again, the specification guides. Discussing the industry need for a projectile capable of “assum[ing] various densities while distinguishing the weight of the projectile from its size,” the Background of the Invention identifies the M855 round as a specific conventional projectile that the invention seeks to improve upon. This is the specification’s only mention of a specific conventional projectile, strongly suggesting that the M855 round is the point of comparison for the claims.
The Court therefore construes the term “reduced area of contact” to mean “the area of contact between the interface and the rifling of the firearm is less than that of a conventional jacketed lead projectile, which derives from the corresponding caliber NATO standard-issue round as of October 21, 2005,” which they specifically noted is the M855 round for 5.56 mm projectiles and the M80 round for 7.62 mm projectiles.
During the original trial, 26 different types of bullets for “reduced area of contact”, yet did not include the original M855. The M855A1 actually has a larger contact area than the M855. In fact, the M855A1 was intentionally designed to have increased contact area to reduce the shear loads on the bullet engraving.
B. “Intermediate Opposite Ends”
Claim 32 of the patent recites “a body including a nose portion and tail portion, said body further including an interface portion disposed
intermediate opposite ends of said body.” (emphasis added). The trial court construed the claim term “intermediate opposite ends” to mean “that the interface is positioned between or in the middle of the opposite ends of the forward end of the nose portion and the trailing end of the tail portion.” The Government argues that the construction should be further limited, in relevant part, “such that the interface does not extend all of the way to the front or to the end of the projectile.” The trial court rejected this limitation, relying on a decision in
Lucent Technologies, Inc. v. Gateway, Inc., 525 F.3d 1200 (Fed. Cir. 2008).
Trial Ct. Op., 119 Fed. Cl. at 390. The trial court interpreted
Lucent to mean that because “including” precedes the term “intermediate opposite ends,” the claimed interface may cover more than just the middle portion of a round.
Id. In other words, the trial court concluded that so long as the interface was positioned, in part, between the forward end and the trailing end of the projectile, it did not matter if the interface was also positioned outside of that prescribed area.
The Appeals Court conclude that the Government’s proposed construction is fully supported by the plain claim language and specification. While the open-ended term “including” does precede “intermediate opposite ends,” prior decisions have warned against using terms such as “comprising,” or “including,” as “weasel words with which to abrogate claim limitations.”
Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 1343 (Fed. Cir. 2007) (quoting
Spectrum Int’l, Inc. v. Sterilite Corp., 164 F.3d 1372, 1380 (Fed. Cir. 1998)). The trial court’s refusal to limit the projectile’s interface so that it does not extend all of the way to the forward or trailing ends of the projectile goes against this admonition and significantly diminishes the “intermediate opposite ends” limitation, almost to the point of rendering it a nullity.
The very essence of the “intermediate opposite ends” limitation is to define a precise position for the interface: between the nose and tail ends of the projectile. The trial court’s construction chips away at this precision by permitting an interface that is not only between the opposing ends, but also outside that position to read on the claim language. As such, the construction is broad enough to cover a traditional full metal jacket surrounding the entire projectile, a fact which Liberty’s counsel acknowledged and embraced at oral argument. (Oral Argument at 17:32–20:24,
available at http://oralarguments.cafc. uscourts.gov/default.aspx?fl=2015-5057.mp3.) This understanding, however, contradicts the ’325 patent specification, which unequivocally distinguishes the claimed invention from projectiles with such a jacketed design. ’325 patent col. 1 ll. 62–63 (“Improved projectile would preferably involve a proposal which eliminates the use of a jacketed projectile.”), col. 2 ll. 39–40 (“[T]he projectile of the present invention eliminates the use of lead and the provision of an outer jacket.”), col. 6 ll. 63–64 (“
t is emphasized that the projectile body[] is not jacketed as in conventional copper jacketed projectiles.”), col. 7 ll. 39–44 (“Structural and operative features of the projectile[], including the cooperative components of the nose portion[], tail portion[] and interface[], overcome many of the disadvantages and problems normally associated with conventional firearm projectiles through the provision of a non-jacketed structure and the elimination of lead.”).
On these facts, M855A1 projectiles cannot satisfy the “intermediate opposite ends” limitation. With the “intermediate opposite ends” limitation not met by M855A1 projectiles, The Court concluded that the Government does not practice asserted claim 32, which includes this limitation, or the claims that depend from claim 32.
3) The Army officer did not have the authority to obligate the Government to any agreement. If I sign a NDA to not release information to FN, and you later find FN has information you gave to me, you cannot sue FN, because I do not have the authority to obligate FN to anything. This is an important thing to remember when dealing with Government representatives, unless they have the authority to sign a contract, they really are not in authority to obligate the Government to anything. So, showing them your secret plans isn’t a great idea.
Basically, the M855A1 is an improvement on the design shown in Patent 7,748,325, not a usurpation of it.
