IP Law Daily Patents relating combat ships were valid, directly infringed by government
Monday, May 8, 2017

Patents relating combat ships were valid, directly infringed by government

By Linda O’Brien, J.D., LL.M.

Two patents pertaining to large combat vessels with a semi-planing monohull design and propelled by waterjets were not invalid due to obviousness or lack of enablement, and were literally infringed by the U.S. government, the U.S. Court of Federal Claims has held. After a 10-day trial, the court determined that the government directly infringed on the asserted claims of the patents and awarded almost $6.5 million in royalties, plus interest, to patent owner FastShip, LLC (FastShip, LLC v. U.S., May 5, 2017, Lettow, C.).

In August 2012, FastShip, LLC filed suit against the U.S. government, claiming infringement of two patents relating to the development of combat vessels designed to operate in shallow waters that used a water-based jet engine for propulsion. The two asserted patents were U.S. Patent No. 5,080,032 ("the ‘032 Patent") and U.S. Patent No. 5,231,946 ("the ‘946 Patent"), both entitled "Monohull Fast Sealift or Semi-Planning Monohull Ship."

The U.S. Navy instituted the Littoral Combat Ship (LCS) program to develop large, fast ships for combat operations in shallow waters. After years of development, in September 2006, the first ship in the Freedom class variant of the LCS program was launched—LCS-1 (USS Freedom). The LCS-1 has a semi-planing, double-chine monohull and is propelled by waterjets powered by gas turbines and diesel engines.

The plaintiff alleged that the LCS-1 infringed Claims 1 and 19 of the ‘032 Patent and Claims 1, 3, 5, and 7 of the ‘946 Patent. The ‘032 and ‘946 Patents are directed to a monohull fast sealift (MFS) or semi-planing monohull (SPMH) ship with a hull design in combination with a waterjet propulsion system. Naval architect David Giles, the inventor of the ‘032 and ‘946 Patents, filed a U.K. patent application in October 1989, setting a prior date for those patents, and a U.S. patent application in May 1990, which issued the ‘032 Patent in January 1992 and ‘946 Patent in August 1993. Both patents expired in May 2010. The patents were assigned to FastShip in July 2012.

The government contended that no infringement occurred and that the ‘032 Patent and ‘946 Patent were invalid due to obviousness and lack of enablement. Further, the government argued that even if the LCS-1 infringed the ‘032 and ‘946 Patents, FastShip was entitled only to reasonable royalty and delay damages.

The parties agreed that Claim 1 of the ‘032 Patent was a representative claim that encompassed every limitation of each claim at issue in the case so the court focused its analysis on the limitations as stated in Claim 1. To prove literal infringement, FastShip was required to demonstrate that the LCS-1 embodies each and every element of Claim 1. It was undisputed that the LCS-1 embodied the following limitations of Claim 1: a hull with a non-stepped profile, a certain hull length and displacement, and a waterjet propulsion system.

High pressure and hydrodynamic lifting. The court first determined that FastShip demonstrated that the hull of the LCS-1 generates high pressure under the stern, which in turn causes hydrodynamic lifting of the stern at a threshold speed, within the scope of the elements of the subject claim. The plaintiff contended that the hooked stern of the LCS-1 causes high pressure and therefore hydrodynamic lifting of the stern as the ship gains speed. This was consistent with the claim language that the hull shape of the LCS-1 creates a high pressure region under the stern and the patented hull form and LCS-1 have this shape. The Navy tests of the LCS-1 models showed that the bare hull of the LCS-1 generated high pressure and lifted the stern at speeds between 35 and 40 knots. This satisfied the "hydrodynamic lifting" element of the claim, the court noted.

Waterjets and additional and hydrodynamic lifting. FastShip also demonstrated that the acceleration of water into the waterjets on the LCS-1 contributes an additional lifting force at the stern of the ship, fulfilling this element of the subject claim, according to the court. The patents at issue teach that as a general rule the waterjets generate lifting forces. The government’s argument that expert calculations showed that the waterjets counteracted lift rather than caused additional lift was rejected. The court noted that the government’s expert failed to account for key characteristics of the performance of the model-scale and full-size LCS-1, and the scaling of the hydrodynamic boundary layer, and overestimated the force of the waterjets. The evidence presented regarding the design and construction of the LCS-1 showed that the waterjets and accompanying inlets on the ship were specifically designed in accord with the precept to create lift under the stern. Thus, FastShip proved that the LCS-1 literally infringed every element of the representative, and therefore literally infringed Claims 1 and 19 of the ‘032 Patent and Claims 1, 3, 5, and 7 of the ‘946 Patent.

Validity. The court found that the asserted claims of the ‘032 and ‘946 Patents were not invalid due to obviousness. The government’s contention that the combination of prior art references, specifically regarding semi-planing monohulls and waterjet propulsion, rendered the patents-at-issue obvious was rejected. A 1989 feasibility study performed by naval architect Donald Blount regarding semi-planing monohull ship designs and waterjet propulsion was not evidence that a person of ordinary skill would find obvious the combination of elements in the ‘032 and ‘946 Patents since Blount was a person of extraordinary skill with his experience of three decades as a naval architect, publisher of numerous articles, and department head for the Navy Combatant Craft Engineering Department.

Further, the patents were not invalid due to lack of enablement, the court noted. The specifications for the ‘032 and ‘946 Patents disclosed that the high pressure area was below the stern was sufficiently enabling to a person of ordinary skill in the art would know how to configure inlets and waterjets within the high pressure area under the stern to maximize performance of the waterjets.

Compensation. FastShip was entitled to recover reasonable and entire compensation for the government’s compulsory nonexclusive patent license, the court determined. The date of infringement was September 2006, when the patented aspects of the LCS-1 were in use or manufactured, and a three-percent royalty rate was reasonable in light of comparable licenses. Accordingly, the court calculated that a hypothetical license agreement between FastShip and the Navy in September 2006 would have resulted in a payment of $6,449,585, plus interest until the judgment is paid.

The case is No. 12-484C.

Attorneys: Mark L. Hogge (Dentons US LLP) and Donald E. Stout (Fitch, Even, Tabin & Flannery LLP) for FastShip, LLC. Andrew P. Zager, U.S. Department of Justice.

Companies: FastShip, LLC

MainStory: TopStory Patent

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