From the preliminary statement:
Plaintiff David Tropp (“Tropp”), owner of U.S. Patent Nos. 7,021,537 and 7,036,728 (the patents-in-suit), submits this memorandum of law in opposition to the motion by Travel Sentry and defendants1 in the Conair action (collectively, “defendants”) for summary judgment pursuant to 28 U.S.C. § 1498.2 Defendants’ novel proposed extension of § 1498, their reliance on the dearth of case law they cite, and their radical policy suggestions, are completely unsupported by the law, as discussed below.
Here, however, Tropp sets forth below the many reasons why defendants’ motion for summary judgment based on 28 U.S.C. § 1498, should be denied. The motion should be denied because that statute requires either infringement—or “use”—of the invention in question by the government itself; this is absent here under any coherent understanding of the words “use” or any interpretation of them by the courts. Neither was there anything cognizable under the cases interpreting § 1498 as “authorization or consent,” by the government to these defendants, to infringe the patents-in-suit for official purposes. Indeed, the moving defendants have no relationship with the government at all concerning the Travel Sentry locks, and § 1498 simply does not apply to third parties, such as defendants here, who infringe for their own profit but who in the process happen to promote a socially useful goal.
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