In the Tradition of Gilda Radner, the Court of Appeals for the Federal Circuit Proclaims "Never Mind" in Zoltek II
The United States Court of Appeals for the Federal Circuit (CAFC) recently issued a so-called en banc (all judges of the court) decision with great importance to Federal Government contractors. In Zoltek Corp. v. United States, Fed. Cir., No. 2009-5135, March 14, 2012 ("Zoltek II"), the Court redefined the scope of the statute underlying the Federal Acquisition Regulation (FAR) "Authorization and Consent" clause, 28 U.S.C. §1498. In so doing, the Court confirmed Federal Government contractor immunity from patent infringement suits in instances where the patent infringement may have occurred in whole or in part outside of the United States. The more fundamental holding of the case was to reverse its own prior decision in the same case (“Zoltek I”), in which the CAFC had held that §1498 does not waive Federal Government patent immunity from certain patent infringements occurring in part outside the United States.
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