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DoD Agrees To Improve How It Approaches Intellectual Property Under Government Contracts

Client Alert | 1 min read | 12.08.21

In Section 839 of the Fiscal Year 2021 National Defense Authorization Act, Congress directed the Government Accountability Office (“GAO”) to prepare a report evaluating the implementation of Department of Defense (“DoD”) Instruction 5010.44 relating to Intellectual Property Acquisition and Licensing, including but not limited to, DoD’s establishment of a cadre of intellectual property (“IP”) experts previously directed by Congress. On November 30, 2021, GAO issued a final report to Congress entitled “DOD Should Take Additional Actions to Improve How It Approaches Intellectual Property” (“Report”). The Report made four recommendations: (1) DoD’s planned guidebook on IP (currently expected to be published in the first quarter of 2022) should clarify how DoD personnel can pursue detailed manufacturing or process data; (2) DoD should determine the collaboration, staffing, and resources needed to execute DoD’s proposed approach for the IP Cadre; (3) the Director of the IP Cadre should collaborate with the President of Defense Acquisition University (“DAU”) to prioritize IP-related tasks that DAU should undertake between 2023 through 2025; and (4) the Director of the IP Cadre should develop additional guidance to help identify the DoD personnel in key career fields that would benefit most from receiving IP training and credentials. In response to a draft of the Report, DoD concurred with each of these recommendations. 

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Client Alert | 2 min read | 11.14.25

Defining Claim Terms by Implication: Lexicography Lessons from Aortic Innovations LLC v. Edwards Lifesciences Corporation

Claim construction is a key stage of most patent litigations, where the court must decide the meaning of any disputed terms in the patent claims.  Generally, claim terms are given their plain and ordinary meaning except under two circumstances: (1) when the patentee acts as its own lexicographer and sets out a definition for the term; and (2) when the patentee disavows the full scope of the term either in the specification or during prosecution.  Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).  The Federal Circuit’s recent decision in Aortic Innovations LLC v. Edwards Lifesciences Corp. highlights that patentees can act as their own lexicographers through consistent, interchangeable usage of terms across the specification, effectively defining terms by implication....