SUSAN G. BRADEN, Judge.
In mid-1997, William Randall McDonnell undertook to develop a solution to problems with traditional systems of launching and recovering unmanned aerial vehicles ("UAV"). "[N]amely, that UAVs were being arrested using a net, and impact with the net damaged the UAVs." Pl. App'x at PA 2-3. Mr. McDonnell's solution "involved hanging a line and engaging the line with a wing and a hook" of a UAV. Pl. App'x at PA 2.
On October 19, 1997, Mr. McDonnell, and his "friend and colleague," Charlie Baker, "performed a [backyard] demonstration of [a] recovery system during which the UAV successfully engaged the vertical line" and was recovered. Pl. App'x at PA 4. In March 1999, other successful demonstrations were performed by Mr. McDonnell. Pl. App'x at PA 5-6.
On July 23, 1999, Mr. McDonnell filed U.S. Provisional Patent Application No. 60/145,286 ("the '286 patent application") that resulted in the issuance of five patents: U.S. Patent Nos. 6,874,729 ("the '729 patent"); 7,097,137 ("the '137 patent"); 8,167,242 ("the '242 patent"); 8,517,306 ("the '306 patent"); and 8,567,718 ("the '718 patent") (collectively "the AATI patents"). Am. Compl. ¶ 25. Each AATI patent bears the title: "Launch and Recovery System for Unmanned Aerial Vehicles." Am. Compl. at 1-2.
The '286 patent application discloses "methods and mechanisms required to launch and retrieve aircraft." Pl. App'x at PA 183. The '286 application also discloses a "propeller guard" and a "latching mechanism," but did not disclose a propeller guard mounted with a latching mechanism. Gov't App'x at GA 66; see also Pl. App'x at PA 190. On July 24, 2000, however, AATI filed a related Patent Cooperation Treaty Application, No. PCT/US00/20099 ("the PCT application)," that did disclose a propeller guard mounted with a latching mechanism. Gov't App'x at GA 296.
In the summer of 1999, Mr. McDonnell approached the United States Coast Guard ("Coast Guard") to market his "launch and recovery systems." Gov't App'x at GA 18-20 (3/4/16 McDonnell Dep.); see also Pl. App'x at PA 6. On November 5, 1999, AATI was awarded a contract by the Coast Guard to demonstrate the launch system (Contract No. N00178-00-M-0069) ("the Launch Contract"). Gov't App'x at GA 318-26; see also Pl. App'x at PA 6. On December 10, 1999, AATI submitted a proposal to the Coast Guard to demonstrate an "improved" recovery system. Gov't App'x at GA 106; see also Pl. App'x at PA 42-54.
On February 24, 2000, a successful demonstration of AATI's launch system took place at BAI Aerosystems, Inc.'s ("BAI") Ragged Island test facility. Gov't App'x at GA 129; see also Pl. App'x at PA 6.
On May 23, 2000, AATI informed the Coast Guard that "a patent has been filed for this launch and recovery approach." Gov't App'x at GA 89; see also Pl. App'x at PA 8. Nevertheless, on June 28, 2000, the Coast Guard entered into Contract No. N00178-00-M-9014 ("the Recovery Contract") with AATI, that required AATI to perform ten demonstrations of an "improved" recovery system. Pl. App'x at PA 8-9. In turn, Mr. McDonnell was paid $45,000 by the United States Navy, on behalf of the Coast Guard. Gov't App'x at GA 31-32. Of that amount, $6,000 was designated for the design, fabrication, and installation of a propeller guard mounted with a latching mechanism. Gov't App'x at GA 31-32. The Recovery Contract, however, did not incorporate or reference Federal Acquisition Regulation § 52.227-11 or contain a "Patent Rights clause."
On October 13, 2000, prior to demonstrating the "improved" recovery system for the Coast Guard, Mr. McDonnell successfully tested a recovery system having a propeller guard mounted with a latching mechanism at BAI's facilities in Easton, Maryland, using a BAI-owned Exdrone.
On October 23, 25, and 27, 2000, AATI demonstrated a recovery system having a propeller guard mounted with a latching mechanism for the Coast Guard. Pl. App'x at PA 8. Although the Recovery Contract required ten demonstrations, the Coast Guard decided to cease demonstrations, because several UAVs were severely damaged during the demonstrations. Pl. App'x at PA 8-9. Thereafter, a Coast Guard Commander prepared a draft report evaluating the demonstrations and provided it to Mr. McDonnell. Pl. App'x at PA 95-110. This report did not reference ownership of, or licensing rights to, the propeller guard mounted with a latching mechanism that was demonstrated by AATI to the Coast Guard. Pl. App'x at PA 95-110.
More than fifteen years later, on March 29, 2016, a Contracting Officer for the Naval Surface Warfare Center Dahlgren Division ("NSWCDD") sent a letter to AATI demanding title to the "inventions disclosed in AATI's PCT/US/2009 Application; U.S. Patent Nos. 6,874,729; 7,097,137; 8,517,306; 8,167,242; 8,567,718; and 8,864,069; and U.S. Patent Application Serial No. 14/518,348," pursuant to 35 U.S.C. § 202
On February 8, 2012, AATI filed a Complaint in the United States Court of Federal Claims alleging that Insitu, Inc. ("Insitu") and the Boeing Company ("Boeing")
The procedural history of this case previously was discussed in the court's July 29, 2015 Memorandum Opinion And Order Construing Certain Claims Of United States Patent No. 6,874,729, United States Patent No. 7,097,137, United States Patent No. 8,167,242, United States Patent No. 8,517,306, And United States Patent No. 8,567,718. See Advanced Aerospace Technologies, Inc. v. United States, 122 Fed. Cl. 445, 449-52 (2015). Therein, the court construed several potentially relevant terms. For example, "fixed hook" was construed to mean "a hook placed in a position remaining constant." Id. at 466. "Obstruction" was construed to mean "an object requiring added force to be moved." Id. at 470. And, "Sensor" was construed to mean "a device that responds to a stimulus (such as heat, light, sound, pressure, signals, magnetism, or a particular motion) and transmits a resulting impulse." Id. at 470, 480.
On November 24, 2015, the court issued a Memorandum Opinion And Order Ruling On Indefiniteness Asserted Regarding Certain Claim Terms In United States Patent No. 6,874,729, United States Patent No. 7,097,137, United States Patent No. 8,167,242, United States Patent No. 8,517,306. See Advanced Aerospace Technologies, Inc. v. United States, 124 Fed. Cl. 282, 290-308 (2015). Therein, the court made several potentially relevant rulings. For example, with respect to the '729 patent, the court determined that the term "sensor" was not indefinite, but that the terms "near the point of engagement" and "outboard portion" were indefinite. Id. at 290-94. With respect to the '137 patent, the court determined that the terms "reasonably secure," "smooth continuation," "substantially arrested," and "sufficient amount" were not indefinite. Id. at 295-98. With respect to '242 patent, the court determined that the term "the inflexible support structure being construed" was not indefinite, but that the term "inboard point" was indefinite. Id. at 299-300. With respect to the '306 patent, the court determined that the terms "elastic deformation," "absorbs most of the energy," "generally vertical," and "generally perpendicular" were not indefinite, but that the terms "outboard portion," "reliably and releasably attach," and "kept clear" were indefinite. Id. 303-08.
On December 4, 2015, the court convened a telephone status conference and issued a Scheduling Order requiring the Government and the Third-Party Defendants to submit an invalidity chart and non-infringement contentions by February 1, 2016 and set a trial on infringement to commence on April 18, 2016 and a trial on damages to commence on June 13, 2016. ECF No. 108.
On February 1, 2016, the Government and the Third-Party Defendants submitted Contentions Of Invalidity And Non-Infringement. ECF No. 109.
On February 9, 2016, the Government filed a Motion To Amend Pleadings, pursuant to Rule 15 of the Rules Of The United States Court Of Federal Claims ("RCFC"), to amend its December 20, 2013 Answer and plead an additional defense under the Assignment of Claims Act, 31 U.S.C § 3727. ECF No. 112.
On February 16, 2016, Plaintiff filed a Motion To Compel Discovery. ECF No. 116.
On February 22, 2016, the court convened a hearing to resolve outstanding discovery disputes. 2/22/16 TR 1-90. During the hearing, the Third-Party Defendants asserted that certain documents were subject to attorney-client privilege and the court ordered submission of these documents for in camera review.2/22/16 TR 30-31. The court also granted-in-part and denied-in-part Plaintiff's February 16, 2016 Motion To Compel. 2/22/16 TR 34-35, 45-46, 49, 50-51, 59, 61-73.
On March 10, 2016, the court convened a telephone status conference in preparation for the upcoming trial, at which the Government informed the court that new information was identified that implicated the court's jurisdiction. ECF No. 135.
On March 11, 2016, the court issued a Memorandum Opinion And Order Ruling On Attorney-Client Privilege Documents, Suspending Discovery, And Canceling Pending Trial Dates. See Advanced Aerospace Technologies, Inc., v. United States, 125 Fed. Cl. 581 (2016). Therein, the court determined that, in light of the Government's March 10, 2016 representation that it intended to file a Motion To Dismiss, the court ordered the suspension of the production of all privileged documents, suspension of all pending discovery (including outstanding depositions), and canceled the infringement and damages trial dates. Id. at 586. In addition, the court denied the Government's February 9, 2016 Motion To Amend Pleadings, without prejudice, and ordered the Government to file a Motion To Dismiss by April 11, 2016. Id. at 586.
On April 11, 2016, the Government filed a Motion To Dismiss ("Gov't Mot."), pursuant to RCFC 12(b)(1). On June 2, 2016, AATI filed a Response ("Pl. Resp."). On August 1, 2016, the Government filed a Reply ("Gov't Reply").
On September 6, 2016, AATI filed a Motion For Leave to file additional declarations in response to the Government's April 11, 2016 Motion To Dismiss. ECF No. 142. These declarations were attached to AATI's June 2, 2016 Response, but did not include the attestation clause required by 28 U.S.C. § 1746.
On November 16, 2016, the court convened an oral argument on the Government's April 11, 2016 Motion To Dismiss. 11/16/16 TR 1-88.
On November 18, 2016 AATI provided the court and the Government with copies of a video depicting Mr. McDonnell's October 19, 1997 and March 1999 demonstrations of the recovery system.
The United States Court of Federal Claims has jurisdiction to adjudicate claims that allege "an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same . . . [seeking] recovery of . . . reasonable and entire compensation for such use and manufacture." 28 U.S.C. § 1498(a).
As a threshold matter, the court must consider jurisdiction before reaching the substantive merits of a case. See Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented."). When considering a motion to dismiss for lack of subject matter jurisdiction, the court must take the facts alleged in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court may consider evidence beyond the pleadings, however, when the motion to dismiss challenges the jurisdictional facts alleged in the complaint. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999). If the court determines that it does not have subject-matter jurisdiction, the court must dismiss the complaint. See RCFC 12(b)(1).
The Government's April 11, 2016 Motion To Dismiss challenges the court's jurisdiction, pursuant to Rule 12(b)(1). A challenge to the United States Court of Federal Claims' "general power to adjudicate in specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(1) motion." Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (allowing a party to assert, by motion, "lack of subject matter jurisdiction"). When considering whether to dismiss an action for lack of subject matter jurisdiction, the court is "obligated to assume all factual allegations [of the complaint] to be true and to draw all reasonable inferences in plaintiff's favor." Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).
The plaintiff bears the burden of proving, by a preponderance of the evidence, that the court possesses jurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936) ("[The plaintiff] must allege in his pleading the facts essential to show jurisdiction."); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) ([The plaintiff] bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence."). Therefore, the plaintiff cannot rely solely on allegations in the complaint, but also must bring forth relevant, adequate proof to establish jurisdiction. See Reynolds, 846 F.3d at 748 ("[I]t was incumbent upon [the plaintiff] to come forward with evidence establishing the court's jurisdiction.").
In relevant part, Section 1498(a) provides that:
28 U.S.C. § 1498(a) (emphasis added).
The Government argues that the "employment or service" exception to Section 1498(a) is a "limitation on the United States' waiver of sovereign immunity." Gov't Mot. at 12-13. The words "employment or service" require that: the invention was made "(1) while in the `employment or service' of the United States and (2)(a) as part of the official functions of the employee or (b) in whose preparation government `time, material[s], or facilities' were used." Gov't Mot. at 14 (quoting Walton v. United States, 551 F.3d 1367, 1369 (Fed. Cir. 2009)). Consequently, "the only question that must be answered is whether Mr. McDonnell's work under the Recovery Contract was `in the employment or service of the United States.'" Gov't Mot. at 14 (quoting 28 U.S.C. § 1498(a)).
The Government adds that the "invention" at issue is the PCT application "as a whole," although only portions of that application describe a propeller guard mounted with a latching mechanism and were "discovered or invented" during performance of the Recovery Contract. Gov't Mot. at 14, 32-34. In addition, the filing date of the '286 application is inapplicable, because only the actual reduction to practice is relevant in establishing whether Mr. McDonnell's inventions were "discovered or invented" during performance of the Recovery Contract. 11/16/16 TR 82.
Therefore, after reviewing the "the plain statutory language, the legislative history, and the case law," the Government concludes that Mr. McDonnell was "in the . . . service of the United States," because "AATI's and Mr. McDonnell's work was overseen by the Coast Guard, and AATI was paid for the work by the United States." Gov't Mot. at 18-19. In addition, Government "time, material[s], or facilities" were used, as Mr. McDonnell admitted, i.e., "the drones used for the Coast Guard research were `government property.'" Gov't Mot. at 14 (citing 3/4/16 McDonnell Dep.). Therefore, "the [c]ourt must find that sovereign immunity has not been waived under 28 U.S.C. § 1498(a) and that the [c]ourt lacks jurisdiction to hear plaintiff's claims." Gov't Mot. at 20.
Finally, the NSWCDD Contracting Officer's March 29, 2016 Letter demanding title to the asserted patents, pursuant to 35 U.S.C. § 202 and Federal Acquisition Regulation 52.227-11, "will void AATI's title in the asserted patents if it becomes final." Gov't Mot. at 20. "If title is voided, AATI will lack standing to assert a patent infringement claim." Gov't Mot. at 20. For this reason, the court should stay further proceedings in this case until the Contracting Officer decides whether to void AATI's title to the patents-in-suit. Gov't Mot. at 20.
AATI responds that "there is no merit to the Government's effort to lump together as a single `invention' the `net' recovery system and the recovery system at issue here." Pl. Resp. at 3. And, there is "no basis in law to combine the two recovery systems together as a `single invention.'" Pl. Resp. at 3. Instead, "each claim under a patent is considered a separate `invention' for the purposes of examining jurisdiction under 28 U.S.C. § 1498." Pl. Resp. at 19.
In addition, none of the "inventions" described in the asserted claims were "`discovered or invented' by a person while in the employment or service of the United States." Pl. Resp. at 19. As the Government admits, "the [Recovery] contract involved only a `drone recovery using a parasail and a propeller guard with latch on the guard.'" Pl. Resp. at 21. Mr. McDonnell, however, "`discovered or invented' none of the fourteen inventions at issue (or any other inventions) during the period of time [that] the [G]overnment contends he was in the employment or service of the Government." Pl. Resp. at 2.
Finally, the court should not stay this case pending the Contracting Officer's final decision, because that decision will not be binding on the court. Id. at 39-40.
The Government replies that "AATI's opposition to the motion to dismiss boils down to a single issue—what is an `invention' for purposes of the jurisdictional limitations on Section 1498(a)?" Gov't Reply at 1. In this case, there is a "`close and umbilical relationship' between the Coast Guard device and the asserted claims." Gov't Reply at 4 (citing Technical Dev. Corp. v. United States, 597 F.2d 733 (Ct. Cl. 1979)). And, "the plain statutory language, the legislative history, case law, and the asserted patents demonstrate that, because AATI was in the service of the Government when it reduced to practice the basic concept underlying the asserted patents, the court does not have jurisdiction to adjudicate AATI's claims that the Government infringed the patents at issue." Gov't Reply at 1.
In addition, the Government argues that the court has jurisdiction to adjudicate a Contracting Officer's decision, only if the decision is final. Gov't Reply at 20 ("[T]he standard of review does not give [the court] leave to ignore the tried-and-true jurisdictional prerequisite of a final decision."). Proceeding to trial before the decision is final "risks wasting resources by forcing the parties to litigate patents that the government might ultimately own." Gov't Reply at 20. For these reasons, the court should stay the case pending the Contracting Officer's final decision. Gov't Reply at 20.
The United States Court of Federal Claims has jurisdiction to adjudicate patent infringement claims against the United States. See 28 U.S.C. § 1498 (2006). Section 1498(a) provides:
28 U.S.C. § 1498(a) (emphasis added).
It is well settled that "each claim of a patent is a separate and distinct invention." See Gould, Inc. v. United States, 579 F.2d 571, 576 (Ct. Cl. 1978) ("It is also important to keep in mind that each claim of a patent is a separate and distinct invention. It is thus possible to discuss and deal with one or more of the claims independently and distinctly from the entire group of patent claims."). As such, the court's jurisdiction under Section 1498(a) must be evaluated in light of the scope of each asserted claim individually.
In addition, in this case, each of the asserted claims is recited in a patent that claims priority to the '286 patent application. Am. Compl. at 29, 66, 103 and 171. The '286 patent application describes "methods and mechanisms required to launch and retrieve aircraft." Pl. App. at PA 183. Among other embodiments, the '286 patent application describes a recovery system in which the wing of a UAV is mounted with a latching mechanism (i.e., hook 26 and spring loaded latch 28). Pl. App. at PA 190, 200. In light of disclosure of the '286 patent application and scope of the subject matter of the asserted claims, without a finding to the contrary, the asserted claims are entitled to the filing date of the '286 patent application (July 23, 1999). See 35 U.S.C. § 120.
The parties agree that Mr. McDonnell filed the '286 patent application before signing either the Launch Contract or the Recovery Contract. Am. Compl. at 1; see also Gov't Mot. at 3-5. Therefore, the asserted claims are entitled to a July 23, 1999 filing date that predates both the November 5, 1999 Launch Contract and the June 28, 2000 Recovery Contract. And, the Court of Claims has held that, when claims are entitled to a filing date that predates Government "employment or service," "subsequent employment history is irrelevant and the bar expressed in 28 U.S.C. § 1498 is inapplicable." See Leesona Corp. v. U.S., 530 F.2d 896, 903 (Ct. Cl. 1976) ("[The Government's] contention that 28 U.S.C. § 1498 bars this suit, because Dr. Tanner was an employee of the United States at the time he executed the continuation-in-part application is without merit. Dr. Tanner was neither employed by nor in the service of defendant either when the invention of claims 4 and 7 was made in 1958 or when the original application was filed in 1960. Since the claims are entitled to the 1960 filing date, his subsequent employment history is irrelevant and the bar expressed in 28 U.S.C. § 1498 is inapplicable."). In this case, since the '286 patent application predates both the Launch Contract and the Recovery Contract the "employment or service" bar of Section 1498(a) is inapplicable.
Nevertheless, the Government insists that the filing date of the '286 patent application is irrelevant. In Pilley v. United States, 74 Fed. Cl. 489 (2006), the Government made similar contentions, arguing "that while constructive reduction to practice by the filing of a patent application may be relevant for the purpose of determining priority of invention, filing a patent application is immaterial to determination of the time of first actual reduction to practice of an invention under the patent rights clause." Id. at 497-98 (citing Hazeltine Corp. v. United States, 820 F.2d 1190, 1196 (Fed. Cir. 1987). The Pilley court also determined that, "[i]n the context of a patent rights clause in a government contract, `reduction to practice occurs when it is established that the invention will perform its intended function beyond a probability of failure,' so that whatever `minor adjustments' are thereafter required may be considered mere `perfecting modifications.'" Id. (emphasis added).
In Pilley, however, the government contract at issue "incorporate[d] by reference FAR § 52.227-11." Id. at 494-95. As such, the court limited its holding to "the context of a patent rights clause in a government contract." Id. at 497-98 (quoting Hazeltine Corp., 820 F.2d at 1196). This is consistent with Hazeltine Corp., where the United States Court of Appeals for the Federal Circuit's decision was based on the fact that the government contract at issue included a "Patent Rights clause" so the holding was limited to "the context of a patent rights clause in a government contract." Hazeltine Corp. 820 F.2d at 1196. In this case, however, neither the Launch Contract nor the Recovery Contract incorporated FAR 52.227-11 or otherwise included a "Patent Rights clause."
Nevertheless, even if FAR 52.227-11 were to apply, the court finds, for purposes of this motion, that Mr. McDonnell actually reduced to practice the inventions disclosed in the asserted claims on October 19, 1997,
The Government's reliance on the "close and umbilical connection" doctrine also does not alter the court's conclusion. Under that doctrine, the federal government has the right to use, royalty-free, "those inventions which have a `close [and] umbilical relationship' to the work and research funded by the United States and were crystallized during performance of the federal contract." Technical Dev. Corp. v. United States, 597 F.2d 733, 745-46 (Ct. Cl. 1979) (citing Technitrol, Inc. v. United States, 440 F.2d 1362, 1372 (Ct. Cl. 1971)). In Technical Dev. Corp., however, the Court of Claims held that the inventions at issue were conceived of or reduced to practice during Government "employment or service." Id. at 749-50. In this case, as discussed above, the "inventions" at issue were conceived of and reduced to practice by October 19, 1997, prior to both the Launch Contract (November 5, 1999) and the Recovery Contract (June 28, 2000).
In addition, although Mr. McDonnell's performance under the Launch Contract and the Recovery Contract necessarily required use of technologies disclosed in the '286 application, the Government "contributed nothing at all to that development." See Leesona Corp., 530 F.2d at 903. In Technitrol, Inc., the Court of Claims considered this issue "by asking what the United States (acting for its taxpayers) can fairly be said to have purchased through its sponsorship of the contract project." Technitrol, Inc., 440 F. 2d at 1372. In this case, Mr. McDonnell's work prior to the Launch Contract and the Recovery Contract was privately funded. 11/16/16 TR 64. Therefore, it cannot "fairly be said" that the Government "purchased" the "inventions" disclosed in the '286 application. Nor can it be said that the public "[h]aving borne the expense" of Mr. McDonnell's efforts, "is entitled to enjoy the fruits without further charge." See Technitrol, Inc. 440 F. 2d at 1372. Even assuming that Mr. McDonnell was in the "service of the United States," the Government proffered no evidence that establishes that the wing mounted with a latching mechanism was "discovered or invented . . . while [he was] in the . . . service of the United States," as required by Section 1498(a). See Technical Development Corp., 597 F.2d at 746.
Finally, 41 U.S.C. § 7104(b)(1) provides that "in lieu of appealing the decision of a contracting officer . . . to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary." 41 U.S.C. § 7104(b)(1) (emphasis added). In light of the non-deferential standard of review and congressional authorization of the United States Court of Federal Claims to adjudicate AATI's patent infringement claims, the court declines to exercise its discretion to stay these proceedings again.
For the reasons discussed herein, the Government's April 11, 2016 Motion To Dismiss is denied.
Section 120 of the 1952 Patent Act, as amended by the Patent Law Treaties Implementation Act of 2012, provides:
35 U.S.C. § 120.
Section 202 of the 1980 Act To Amend The Patent And Trademark Laws, as subsequently amended, provides, in relevant part:
FAR 52.227-11 provides in relevant part:
48 C.F.R. § 52.227-11(a)-(d).
At the oral argument, the Government also asserted that the video does not show actual reduction to practice, because the UAV used was a "toy," i.e., subscale, and not a full sized military drone. TR 76-81. The asserted claims, however, recite a "flying object," an "aircraft" and an "unmanned aircraft," not any specific type of UAV. See Claim 45 of the '729 patent (Am. Compl. Ex. A at 63); claims 1, 2, 18, 25 and 30 of the '137 patent (Am. Compl. Ex. B. at 98-99); claims 2, 13, 15 and 19 of the '242 patent (Am. Compl. Ex. C. at 135); and claims 2, 3, 4 and 5 of the '718 patent (Am. Compl. Ex. E. at 202). Therefore, the fact that a military UAV was not used in reducing Mr. McDonnell's invention to practice is not relevant or dispositive.
