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The Government Made Me Do It:

The Federal Circuit Expands the Reach of § 1498(a) to Protect Private Companies Performing “Quasi-Governmental Functions” from Traditional Patent Infringement Liability

By Scott A. Felder, Nicole J. Owren-Wiest and Laura E. Sherman of Wiley Rein LLP

Scott A. Felder is a partner in the Intellectual Property and Government Contracts practices at Wiley Rein LLP. Nicole J. Owren-Wiest is a partner in Wiley Rein’s Government Contracts, Litigation, and White Collar Defense & Government Investigations practices. Laura E. Sherman is an attorney in Wiley Rein’s Government Contracts Practice.

The Federal Circuit recently took another step in its efforts to reaffirm the broad protections afforded by 28 U.S.C. § 1498, which provides a patentee’s exclusive remedy for the use or manufacture of patented inventions “by or for the United States.” In IRIS Corp. v. Japan Airlines Corp., No. 2010-1051, the court held that a private company performing a quasi-governmental function as part of its commercial activities can avail itself of the immunity against traditional patent infringement litigation conferred by § 1498.

Various federal laws and international treaties require Japan Airlines Corp. (JAL) to examine passports at domestic airports as part of its routine commercial operations. Some of the passports that JAL examines are electronic passpor...

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