GAO Finds Discussions Were Not Meaningful And, In Fact, Misleading
Client Alert | 1 min read | 06.30.04
In Lockheed Martin Corp. (May 27, 2004), GAO found that the agency failed to conduct meaningful discussions because it neglected to notify the protester during discussions that proposed "contractor-specific" savings would be excluded from the agency's calculation of the Average Unit Production Cost ("AUPC"), despite the protester's reasonable belief that the agency would do so, and further, that discussions were misleading because the agency failed to disabuse the protester of its erroneous (though reasonable) understanding regarding the costs that the agency intended to apply in calculating the AUPC. GAO also determined that the award decision was flawed because the agency credited the awardee's proposal with having met certain performance requirements even though the proposal never addressed the specific level of performance required.
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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.
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