TVI Energy Corp. v. Blane

TVI Energy Corp. v. Blane

Opinion

 [***1071]   [*1058]  DAVIS, Circuit Judge

TVI Energy Corporation (TVI) appeals from a decision of the District Court for the Eastern District of Virginia granting appellees Blane Enterprises, Inc. and Milton C. Blane (Blane) summary judgment in a patent infringement action. The District Court decided that, under 28 U.S.C. § 1498, appellant's sole remedy would lie, if at all, in the United States Claims Court. ² We affirm.

 [**2]  I.

Modern weapon systems are equipped with infrared sighting devices that enable military troops to locate and identify enemy units at night and during inclement weather. Hostile vehicles emit characteristic infrared images called thermal signatures that are unique for each type of vehicle. For example, a battle tank has a thermal  [*1059]  signature quite distinct from that of a wheeled armored vehicle. TVI is engaged in designing, developing, and manufacturing disposable thermal targets for the United States military. These thermal targets duplicate the thermal signatures of enemy units and are used by the military in weapon training exercises. TVI was granted U.S. letters patent No. 4,422,646 ( '646 patent) on disposable thermal targets in 1983 and since that time has been a major supplier to the United States Government (Government).

In October 1985, the Government invited the public to submit bids to supply disposable thermal targets to the military. The Government's procurement procedure required that bidders submit specimen thermal targets and conduct live demonstrations in Fort Knox, Kentucky. ³ Blane and TVI were both bidding on the Government contract and [**3]  each demonstrated its specimen thermal targets in Fort Knox on the same day. Mr. Rosa, a vice-president [***1072]  of TVI, attended the demonstration and, upon seeing the Blane targets, concluded that they infringed the '646 patent.

TVI immediately instituted an action in the United States District Court for the Eastern District of Virginia (District Court) against Blane claiming patent infringement. ⁴ Blane filed a motion for summary judgment contending, inter alia, that, as a potential governmental supplier, it was immune under 28 U.S.C. § 1498 ⁵ from an infringement action in the District Court, that the District Court lacked jurisdiction, and that TVI's relief lay, if at all, in an action against the Government in the Claims Court. TVI opposed that motion. It argued that § 1498 was not controlling in this instance because Blane was merely bidding for a [**4]  Government contract and there was, under the applicable procedures, no obligation on the Government to accept any bid or to enter into a contract with any one of the offerors. The District Court rejected TVI's argument and held that Blane was immune under 28 U.S.C. § 1498 from suit in the District Court. TVI appeals that decision on the ground that Blane's demonstration at Fort Knox was not a use or manufacture "for the Government" within the meaning of § 1498 and that Blane infringed the '646 patent in circumstances that were not "with the authorization or consent of the Government."

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