Appeals from the United States Court of Federal Claims in No.
1:12-cv-00484-CFL, Judge Charles F. Lettow.
Lee Hogge, Dentons U.S. LLP, Washington, DC, argued for
plaintiff-appellant. Also represented by Carl Paul Bretscher,
Shailendra K. Maheshwari, Rajesh Charles Noronha; Donald
Edward Stout, Fitch, Even, Tabin & Flannery LLP,
David Bolden, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendant-cross-appellant. Also represented by Chad A.
Readler, Gary Lee Hausken.
Moore, Wallach, and Chen, Circuit Judges.
WALLACH, CIRCUIT JUDGE.
FastShip, LLC ("FastShip") sued the United States
("the Government") in the U.S. Court of Federal
Claims, seeking damages for patent infringement pursuant to
28 U.S.C. § 1498 (2012). According to FastShip, the U.S.
Department of the Navy's ("Navy")
Freedom-class Littoral Combat Ships
("LCS"), specifically the LCS-1 and LCS-3, infringe
claims 1 and 19 of U.S. Patent No. 5, 080, 032 ("the
'032 patent") and claims 1, 3, 5, and 7 of U.S.
Patent No. 5, 231, 946 ("the '946 patent")
(collectively, "the Asserted Claims") (together,
the Court of Federal Claims' opinion construing various
terms of the Patents-in-Suit, see FastShip, LLC v. United
States (FastShip I), 114 Fed.Cl. 499 (2013),
the Government filed a motion for partial summary judgment
pursuant to Rule 56 of the Rules of the Court of Federal
Claims ("RCFC"), arguing that the LCS-3 was not
"manufactured" by or for the Government within the
meaning of § 1498 before the Patents-in-Suit expired,
J.A. 164. The Court of Federal Claims granted the
Government's Motion. See FastShip, LLC v. United
States (FastShip II), 122 Fed.Cl. 71, 86
(2015). The Court of Federal Claims then convened a bench
trial and issued a post-trial opinion, holding that LCS-1
infringed the Asserted Claims and awarding FastShip $6, 449,
585.82 in damages plus interest. See FastShip, LLC v.
United States (FastShip III), 131 Fed.Cl. 592,
627 (2017); J.A. 82 (Judgment).
appeals the Court of Federal Claims' grant of the
Government's Motion in FastShip II and damages
calculation in FastShip III. The Government
cross-appeals, alleging that, in FastShip III, the
Court of Federal Claims improperly modified a claim
construction from FastShip I, thereby resulting in a
determination that LCS-1 infringed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3). We affirm, with
modification to the damages award.
"Monohull Fast Sealift or Semi-Planing Mon-ohull Ship,
" the Patents-in-Suit relate to a "fast ship whose
hull design in combination with a waterjet propulsion system
permits, for ships of about 25, 000 to 30, 000 tons
displacement with a cargo carrying capacity of 5, 000 tons,
transoceanic transit speeds of up to 40 to 50 knots in high
or adverse sea states." '032 patent col. 1 ll.
8-13. The specification indicates that prior to
the Patents-in-Suit, these speeds were "not achievable
in ships of such size without impairment of stability or
cargo capacity such as to render them impracticable."
Id. col. 1 ll. 13-15; see id. col. 6 l.
59-col. 7 l. 38 (summarizing the purported advantages of the
Patents-in-Suit). The parties agree that claim 1 of the
'032 patent is representative of all Asserted Claims in
this appeal. It recites:
A vessel comprising:
a hull having a non-stepped profile which produces a high
pressure area at the bottom of the hull in a stern section of
the hull which intersects a transom to form an angle having a
vertex at the intersection and hydrodynamic lifting of the
stern section at a threshold speed without the hull planing
across the water at a maximum velocity determined by a Froude
Number,  the hull having a length in excess of 200
feet, a displacement in excess of 2000 tons, a Froude Number
in between about 0.42 and 0.90, and a length-to-beam ratio
between about 5.0 and 7.0; at least one inlet located within
the high pressure area;
at least one waterjet coupled to the at least one inlet for
discharging water which flows from the inlet to the waterjet
for propelling the vessel; a power source coupled to the at
least one waterjet for propelling water from the at least one
inlet through the waterjet to propel the vessel and to
discharge the water from an outlet of the waterjet; and
acceleration of water into the at least one inlet and from
the at least one waterjet produces hydrodynamic lift at the
at least one inlet which is additional to the lifting
produced by the bottom of the hull in the high pressure area
which increases efficiency of the hull and reduces
Id. col. 13 l. 68-col. 14 l. 28 (emphasis added).
All of the Asserted Claims include the "increases
efficiency of the hull" limitation. See id.
col. 16 ll. 13-14 (claim 19); '946 patent col. 14 ll.
22-23 (claim 1), col. 14 ll. 51-52 (claim 3), col. 15 ll. 1-2
(claim 5), col. 16 ll. 8-9 (claim 7).
Relevant Factual Background
2003, the Navy issued a request for proposals related to its
LCS program. FastShip III, 131 Fed.Cl. at
The Navy eventually awarded a team comprised of Lockheed
Martin Corp. ("Lockheed Martin") and Gibbs &
Cox, Inc. ("Gibbs & Cox") a contract to design
and build the Freedom class of LCS. FastShip
II, 122 Fed.Cl. at 75; see FastShip III, 131
Fed.Cl. at 603. Lockheed Martin and Gibbs & Cox began
construction of LCS-1 in February 2005, and LCS-1 was
launched in September 2006 and commissioned by the Navy in
November 2008. FastShip III, 131 Fed.Cl. at 603.
Martin and Gibbs & Cox began construction of LCS-3's
first module in July 2009 with the laying of the keel.
FastShip II, 122 Fed.Cl. at 76. By September 2009,
LCS-3's two gas turbine engines were installed and, by
April 2010, at least one, but most likely all four, of the
impellers and housings for the waterjets were awaiting
installation. Id. However, after corrosion was
detected in the waterjet tunnels of LCS-1, components from
LCS-3's waterjets were borrowed for use on LCS-1 in May
2010. Id. LCS-3's waterjet impeller systems were
installed in July 2010, and LCS-3's final module was
erected in September 2010. Id. at 77. Although LCS-3
was launched in December 2010, alignment and connection of
the propulsion system and testing continued throughout 2011,
and LCS-3 was delivered to the Navy in June 2012.
18, 2010, the Patents-in-Suit expired. Id. At the
time of their expiration, "LCS[-]1 was complete and in
use by the Navy but LCS[-]3 was still under
construction." FastShip I, 114 Fed.Cl. at 501
appeal involves three issues, namely, whether the Court of
Federal Claims erred in: (1) granting the Government's
Motion as to LCS-3; (2) holding that the hydrodynamic lifting
of LCS-1's stern at a threshold speed infringes the
"increases the efficiency of the hull" limitation;
and (3) awarding $6, 449, 585.82 in damages plus interest.
See Appellant's Br. 1-2; ...