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Recent Cases
United States
Court of Appeals for the Federal Circuit
03-1074, -1075, -1085,
-1086
AK STEEL
CORPORATION,
Plaintiff-Appellant,
v.
SOLLAC and UGINE,
Defendants-Cross Appellants.
David
E. Schmit, Frost Brown Todd LLC, of Cincinnati,
Ohio, argued for
plaintiff-appellant. With him
on the brief was Ann G. Robinson.
Steven
P. Weihrouch, Oblon, Spivak, McCelland, Maier, & Neustadt, P.C., of
Alexandria, Virginia,
argued for defendants-cross appellants. With him on the brief were Steven
E. Lipman, Jean-Paul Lavalleye, Stephen G. Baxter, Michael
E. McCabe, Jr., and Clayton W. Thompson, II.
Appealed from: United
States District Court for the Southern
District of Ohio
Judge Susan J. Dlott
United States
Court of Appeals for the Federal Circuit
03-1074,-1075,-1085,-1086
AK
STEEL CORPORATION,
Plaintiff-Appellant,
v.
SOLLAC
and UGINE,
Defendants-Cross Appellants.
________________________
DECIDED: September 23, 2003
________________________
Before LOURIE, CLEVENGER, and
RADER, Circuit Judges.
Opinion
for the court filed by Circuit Judge LOURIE. Concurring opinion filed by Circuit
Judge RADER.
LOURIE, Circuit Judge.
AK Steel Corporation appeals from the decision of the
United States District Court for the Southern District of Ohio granting
summary judgment that its U.S. Patent 4,800,135 was not infringed by Sollac
and Ugine (collectively, “Sollac”) and that certain claims of
its U.S. Patent 5,066,549 are invalid.
AK Steel Corp. v. Sollac, 234 F. Supp. 2d 711 (S.D. Ohio
2002). Because the court
properly construed the patent claims and correctly found no genuine issues
of material fact, we affirm.
BACKGROUND
AK Steel owns the ’135
and ’549 patents, which are directed to hot-dip aluminum-coated
stainless steel. The ’549
patent issued from an application that was a continuation of the
application from which the ’135 patent issued. As such, the two patents have
different claims but share a common specification. That specification explains that
aluminum-coated stainless steel has desirable resistance to corrosion and
high-temperature oxidation.
’135 patent, col. 1, ll. 14-23. Those properties make such steel
useful in the manufacture of components for use in automotive exhaust
systems and combustion equipment.
Id. Hot-dip aluminum-coated steel is
produced by passing heated steel strips through molten aluminum; however,
it is challenging to get the aluminum to adhere or “wet” well
onto the steel. Id.
at col. 2, ll. 21-25. Wetting
problems can result in crazing or flaking of the aluminum coating during
subsequent bending of the strip.
Id. at col. 2,
ll. 26-27. The inventors of the
patents in suit solved the wetting problem by maintaining the steel strip
in a hydrogen atmosphere prior to entry into the aluminum coating bath. Id.
at col. 2, ll. 44-50.
The inventors also discovered
that their invention did not work well unless the aluminum is substantially
pure, as they stated in their patent application:
Most hot dip aluminum coatings contain about 10% by weight
silicon. This coating metal is
generally defined in the industry as Type 1. We have discovered this type
aluminum coating metal does not wet well with ferritic chromium alloy
steel, even when using the hydrogen protective atmosphere. While not being bound by theory, it
is believed silicon exceeding 0.5% by weight decreases the reactivity of
the aluminum coating metal needed to react with a ferritic chromium alloy
steel substrate. Accordingly, silicon
contents in the coating metal should not exceed about 0.5% by weight.
Commercially pure hot dip aluminum coatings, otherwise known as
Type 2 in the industry, are preferred for our invention. By “pure” aluminum is
meant those aluminum coating metals where addition of substantial amounts
of alloying elements, such as silicon, are precluded.
Id.
at col. 5, ll. 23-40 (emphases added).
The ’135 patent, the
first of the two patents chronologically, contains one independent claim,
which reads as follows:
1. A ferrous base ferritic strip
continuously hot dip coated with a coating metal; comprising: the strip
including at least about 6% by weight chromium, the coating metal
consisting essentially of aluminum, the coating layer on said strip
being substantially free of uncoated areas and formed without a thick
brittle Fe-Al alloy inner layer,
said coating layer being tightly adherent
to said strip and resistant to crazing or flaking during bending.
Id.
at col. 6, l. 62 to col. 7, l. 2 (emphasis added). The pertinent limitation of that
claim, as emphasized above, is that the coating “consist[]
essentially of aluminum.”
The application from which
the ’549 patent issued was filed as a continuation of the application
from which the ’135 patent issued. In that continuation application,
the inventors sought and obtained broader claims. Rather than require that the coating
metal consist essentially of aluminum, the independent claims of the
’549 patent require that the coating metal include “aluminum or
aluminum alloys” or simply have enhanced wetting characteristics. ’549 patent, col. 7, ll. 1-7; col. 8, ll.
5-9. Of the eight claims in the
’549 patent, only the odd-numbered ones are at issue in this appeal;
they read as follows:
1. A ferrous base ferritic strip
continuously hot dip coated with a coating metal, comprising:
the strip including at least about 6% by weight chromium,
the coating metal including aluminum or aluminum alloys,
the coating layer on the strip being substantially free of uncoated
areas and formed without a thick brittle Fe-Al alloy inner layer,
the coating layer being tightly adherent
to the strip and resistant to crazing or flaking during bending.
3. The strip of claim 1 wherein the
aluminum coating metal contains up to about 10% by weight silicon.
5. A ferritic steel strip continuously
hot dip coated with an aluminum coating metal, comprising:
the
strip being stainless steel including at least about 10% by weight
chromium,
the
coating layer on the strip being substantially free of uncoated areas and
formed without a thick brittle Fe-Al alloy inner layer,
the coating layer being tightly adherent to the strip
and resistant to crazing or flaking during bending.
7. The strip of claim 5 wherein the
aluminum coating metal contains up to about 10% by weight silicon.
Id.
at col. 6, l. 65 to col. 7, l. 7; col. 8, ll. 1-9, 12-13 (emphases added).
The independent claims 1 and
5 were allowed by the Patent and Trademark Office (“PTO”)
without amendment or alteration.
However, when the dependent claims 3 and 7 were originally filed,
rather than reciting that “the aluminum coating contains up to about
10% by weight silicon,” they read “the coating metal is Type 1
aluminum.” The examiner
rejected both claims under 35 U.S.C. § 112, ¶ 2, as being
indefinite for failing to particularly point out and distinctly claim the
subject matter sought to be patented.
In particular, the examiner suggested that the phrase “Type
1” should be replaced with the more explicit definition that the
applicants had provided in their specification. The applicants complied by replacing
the “Type 1” language with the requirement that the silicon
content be “up to about 10%,” and the PTO then issued the
’549 patent.
AK Steel sued Sollac in the
district court for infringement of several patents, including the
’135 and ’549 patents.
Sollac manufactures stainless steel that is hot-dipped in a molten
mixture including aluminum and 8.0% - 8.5% silicon.
The district court judge adopted a special
master’s construction of the phrase “consisting essentially of
aluminum” in the ’135 patent claims to permit no more than
“about 0.5% silicon” and therefore granted summary judgment of
noninfringement. AK Steel,
234 F. Supp. 2d at 720. The
judge also adopted the special master’s thorough construction of
claims 1, 3, 5, and 7 of the ’549 patent as encompassing Type 1
aluminum and his conclusion that the patent did not enable one skilled in
the art to practice the invention with Type 1 aluminum, as required by 35
U.S.C. § 112, ¶ 1. Id.
at 718. The court therefore
granted summary judgment of invalidity with respect to those ’549
patent claims. Id.
at 719. AK Steel timely
appealed and Sollac timely cross-appealed to this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(1).
DISCUSSION
A
determination of patent infringement requires a two-step analysis. “First, the court determines
the scope and meaning of the patent claims asserted . . . [Second,] the properly construed
claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc.,
138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc)
(citations omitted). Step one,
claim construction, is an issue of law, Markman v. Westview Instruments,
Inc., 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en
banc), aff’d, 517 U.S. 370 (1996), that we review de novo,
Cybor, 138 F.3d at 1456.
Step two, comparison of a claim to the accused device, requires a
determination that every claim limitation or its equivalent is found in the
accused device. Warner-Jenkinson
Co. v. Hilton Davis Chem. Co., 520 U.S.
17, 29 (1997). Those
determinations are questions of fact.
Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998).
Whether the
subject matter of a patent claim satisfies the enablement requirement of 35
U.S.C. § 112, ¶ 1, is a question of law based on underlying
facts, In re Wands, 858 F.2d 731, 735 (Fed. Cir.
1988), and, because a patent is presumed to be valid, 35 U.S.C. § 282
(2000), the evidentiary burden to show facts supporting a conclusion of
invalidity is one of clear and convincing evidence, WMS Gaming Inc. v.
Int’l Game Techs., 184 F.3d 1339, 1355 (Fed. Cir.
1999).
On appeal, AK Steel argues that the court erred by
interpreting the ’135 patent claims too narrowly and the ’549
patent claims too broadly. It
contends that the claims of both patents should be construed to cover
coating baths containing up to, but not including, 10% silicon. Under that claim construction,
according to AK Steel, there are genuine issues of material fact relating
to infringement of the ’135 patent claims and enablement of the
’549 patent claims.
Sollac responds that the court correctly construed
both patents’ claims and properly found no genuine issue of material
fact as to noninfringement of the ’135 patent claims and lack of
enablement of the involved ’549 patent claims. Sollac also cross-appeals, arguing
that the court abused its discretion in denying it summary judgment of
invalidity of the same ’549 patent claims on the grounds of lack of
written description and anticipation by AK Steel’s earlier U.S.
Patent 4,675,214. The district
court adopted the special master’s recommendation to deny summary
judgment of invalidity for lack of written description and not to decide
the anticipation issue.
A. The
’135 Patent
AK Steel argues that the district court erred in
interpreting the phrase “consisting essentially of aluminum” in
the ’135 patent claims to permit only up to about 0.5% silicon. Rather, according to AK Steel, the
correct interpretation permits silicon in an amount up to but not including
10%, as the intrinsic evidence shows that about 10% silicon materially
changes the novel characteristics of the invention. AK Steel contends that the court
read the specification’s statement that “silicon should not
exceed about 0.5%” out of context. That statement, which advanced a
theory that the applicants expressly stated was not binding on them,
relates to reactivity, according to AK Steel, not to the critical
characteristic of the claimed invention — good wetting.
Sollac responds that the specification clearly states
that the invention is to be used with pure or nearly pure aluminum and
should not be used with Type 1 aluminum. Sollac further contends that the
prosecution history also contains statements expressing that view. Finally, Sollac contends that, given
the choice between a broader and narrower construction, and the enablement
concerns raised by the broader one, the narrower one should prevail.
We agree with the district court’s construction
of the disputed claim language.
The phrase “consisting essentially of” in a patent claim
represents a middle ground between the open-ended term
“comprising” and the closed-ended phrase “consisting
of.” In view of the
ambiguous nature of the phrase, it has long been understood to permit
inclusion of components not listed in the claim, provided that they do not
“materially affect the basic and novel properties of the
invention.” PPG Indus.
v. Guardian Indus. Corp., 156 F.3d 1351, 1354 (Fed. Cir.
1998); In re Janakirama-Rao, 317 F.2d 951, 954 (CCPA 1963). Thus, the claim construction issue
presented by the ’135 patent in this case is whether an amount of
silicon in excess of 0.5% in the aluminum coating materially affects the
basic and novel properties of the invention.
To determine those properties, we need look no
further than the patent specification.
The specification clearly states that good wetting is the goal of
the invention as well as what distinguishes it from the prior art. See ’135 patent, col.
2, ll. 66-68 (“It is a principal object of this invention to form hot
dip aluminum coated ferritic chromium alloy steels having enhanced wetting
by the coating metal.”).
The specification also clearly states that Type 1 aluminum
containing “about 10%” silicon contains too much silicon and
does not achieve that goal, id. at col. 5, ll. 23-29, whereas
Type 2 or nearly pure aluminum does and is therefore preferred, id. at
col. 5, ll. 35-40. Furthermore,
the specification draws a precise line between those two materials,
demarking the exact percentage of silicon that the inventors considered to
be too much silicon, when it states, “[s]ilicon contents in the
coating metal should not exceed about 0.5% by weight.” Id.
at col. 5, ll. 33-34. On the
basis of that statement, we conclude that silicon in excess of 0.5% by
weight would materially alter the basic and novel properties of the
invention, and that the claims of the ’135 patent must therefore be
interpreted to permit no more than 0.5% silicon by weight in the aluminum
coating.
AK Steel’s attempt to distance itself from the
clear limiting statements in its specification is unavailing. While it is true that statements in
a specification explaining a scientific theory by which an invention is
believed to operate should seldom, if ever, be treated as a limitation on a
claimed invention, e.g., Fromson v. Advance Offset Plate, Inc.,
720 F.2d 1565, 1570 (Fed. Cir. 1983), the district
court did not do so here. There
is a distinction between an inventors’ theory as to the reason for a
limitation and the meaning of that limitation. By its very terms, the specification
here expresses the inventors’ desire not to be bound by the
reactivity theory they present to explain why aluminum with more silicon
does not wet well. See
’135 patent, col. 5, ll. 29-34 (“While not being bound by
theory . . . .”).
However, no such disclaimer attaches to the following conclusion
that silicon should not exceed 0.5%.
That conclusion is not a theory; it is an expression speaking to the
conditions under which the invention will or will not operate properly. As such, AK Steel cannot escape its
impact upon the meaning of the claim phrase “consisting essentially
of aluminum.”
Nor are we persuaded by AK Steel’s arguments
that the determination whether more than 0.5% silicon materially alters the
basic and novel properties of the invention is a question of fact that must
be answered by the jury. While
“consisting essentially of” language in a patent claim can at
times blur the distinction between the separate steps in an infringement
analysis (claim construction and comparison of the construed claim to the
accused device or method), the distinction is clear enough in this
case. AK Steel cites PPG
Industries to support its position that that determination is a factual
one for the jury. Indeed, we
held in that case that “[t]he court properly left it to the jury to
determine whether the amounts of iron sulfide in [the accused] SMG glass
have a material effect on the basic and novel characteristics of the
glass.” Id. However, we so held there because,
as we stated in the immediately preceding sentence, “The district
judge properly recognized that the patent is silent about iron sulfide and
about what constitutes a material effect on the properties of the
glass.” Id. In this case, quite differently, the
specification is far from silent regarding silicon and its material effect on
the properties of the aluminum coating bath and the resultant coated steel;
as explained above, the specification directly speaks to and conclusively
answers that question.
Therefore, it is as a matter of claim construction that we hold that
the claims of the ’135 patent do not encompass steel coated with
aluminum containing more than about 0.5% silicon. The only factual issue that remains
is the simple one whether the claims, so interpreted, read on Sollac’s
steel strips coated with aluminum containing 8.0% silicon. They do not, and no reasonable juror
could conclude otherwise, given the fact that 8.0% is far in excess of
0.5%. We therefore affirm the
court’s grant of summary judgment of noninfringement of the
’135 patent.
B. The ’549 Patent
We next turn to the ’549 patent and the
question whether the court correctly granted summary judgment that the
contested claims of that patent are not enabled. Because a patent specification must
enable the full scope of a claimed invention, In re Wright, 999 F.2d
1557, 1561 (Fed. Cir. 1993), an enablement inquiry
typically begins with a construction of the claims, see MPEP §
2164.08 (8th ed., rev. 1 2003) (“All questions of enablement are
evaluated against the claimed subject matter. The focus of the examination inquiry
is whether the substantial scope of the claim is enabled. Accordingly, the first analytical
step requires that the examiner determine exactly what subject matter is
encompassed by the claims.”).
1. Claim
Construction
AK Steel argues that the district court’s
construction of the ’549 patent claims as including Type 1 aluminum
is contrary to (1) the ordinary meaning of “up to” as not
including the 10% endpoint; (2) the claims’ recitation that the
coating must wet well; (3) the specification’s clear disclaimer of
Type 1 aluminum; and (4) the axiom that claims should be interpreted to
preserve their validity.
According to AK Steel, the court mistakenly assumed that the
applicants did not narrow the claims when they replaced the words
“Type 1 aluminum” with “up to about 10%” silicon,
when in fact they did so to surrender that subject matter.
Sollac responds that AK Steel’s dictionary
definition of “up to” is nonsensical where a numerical limit
follows that phrase. In such a
case, according to Sollac, the limit is included (e.g., counting up
to ten stops at ten, not nine).
Sollac also contends that the amendment replacing “Type
1” with “up to about 10%” was presented as an improvement
in clarity, not as an exclusion of subject matter. Moreover, the amendment affected
only the dependent claims, not the independent claims, which were submitted
with an explanation that they encompass any type of aluminum.
We
agree with Sollac as to the meaning of the ’549 patent claims. We begin with the dependent claims 3
and 7. Those claims state that
the silicon content of the aluminum coating is “up to about
10%.” ’549 patent,
col. 7, l. 11; col. 8, l. 13.
We hold that those claims do indeed extend up to, and include, 10%
silicon in the aluminum coating, i.e., Type 1 aluminum coatings.
First,
we conclude that the ordinary meaning of the phrase “up to about
10%” includes the “about 10%” endpoint. As pointed out by AK Steel, when an
object of the preposition “up to” is nonnumeric, the most
natural meaning is to exclude the object (e.g., painting the wall up
to the door). On the other
hand, as pointed out by Sollac, when the object is a numerical limit, the
normal meaning is to include that upper numerical limit (e.g.,
counting up to ten, seating capacity for up to seven passengers). Because we have here a numerical
limit — “about 10%” — the ordinary meaning is that
that endpoint is included.
Moreover,
the prosecution history shows that the phrase was introduced into the
claims with the intention and effect of covering the endpoint. Claims 3 and 7 originally recited
“Type 1 aluminum,” and it is clear that the inventors intended
to obtain claims covering Type 1 aluminum. During prosecution, however, AK
Steel amended those claims to remove reference to Type 1 aluminum and to
put in its place language expressing the “up to about 10%
silicon” language. There
was no indication that the amendment was made to relinquish claim scope;
rather it was made in response to the examiner’s request to replace
language that he found vague with language that he felt “more
specifically defined” the same material. Under those circumstances, the
amendment clarified the claims without changing their scope. On the basis of that prosecution
history alone, claims 3 and 7 must be interpreted to encompass Type 1
aluminum. In addition, because
the specification defines Type 1 aluminum as “contain[ing] about 10%
by weight silicon,” id. at col. 5, ll. 25-28, i.e.,
the endpoint recited in the amended and issued claims, it follows that the claims
encompass, rather than exclude, both an aluminum coating having about 10%
silicon and a Type 1 aluminum coating.
Turning
next to the independent claims, we begin their interpretation by analyzing
their ordinary meaning.
According to their plain language, independent claim 1 permits the
coating metal to include any “aluminum or aluminum alloy,” id. at
col. 7, ll. 1-2, while independent claim 5 does not contain any express
limitation regarding the composition of the coating metal, other than that
it be “an aluminum coating metal,” id. at col.
8, l. 2. The ordinary meaning
of those phrases in claims 1 and 5, then, is that they encompass a metal
coating mixture of aluminum, including perhaps a significant amount of
silicon. We need not determine
the upper limit, if any, of silicon that the claim language permits, but
the claims must cover up to at least 10% silicon, as the parties do not
dispute that a mixture of about 10% silicon and approximately 90% aluminum
is an “aluminum alloy” and “an aluminum
. . . metal.” Id.
at col. 7, ll. 1-2; col. 8, l. 2.
Moreover,
and most importantly, claims 1 and 5 must also encompass aluminum with up
to about 10% silicon, i.e., Type 1 silicon, because claims 3 and 7,
which depend from claims 1 and 5, respectively, expressly recite “up
to about 10% silicon.”
Under the doctrine of claim differentiation, dependent claims are
presumed to be of narrower scope than the independent claims from which
they depend. See RF
Del., Inc. v. Pac. Keystone Techs.,
Inc., 326 F.3d 1255, 1264 (Fed. Cir. 2003)
(stating that an independent claim is usually accorded a scope greater than
its dependent claims); see also 35 U.S.C. § 112, ¶
4 (2000) (“[A] claim in dependent form shall contain a reference to a
claim previously set forth and then specify a further limitation of the
subject matter claimed. A claim
in dependent form shall be construed to incorporate by reference all the
limitations of the claim to which it refers.”). That presumption is applicable in
this case and has not been rebutted.
If the dependent claims expressly recite “up to about
10%” silicon, then the independent claims, which must be at least as
broad as the claims that depend from them, must include aluminum coatings
with “up to about 10%” silicon. Independent claims 1 and 5 therefore
also cover at least steel strips hot-dip coated with aluminum containing
about 10% silicon, i.e., Type 1 aluminum.
AK Steel’s remaining arguments concerning the
interpretation of the claims are unpersuasive. First, AK Steel points to language
in the independent claims describing the functional qualities of the
coating layer, i.e., “being substantially free of uncoated
areas,” “formed without a thick brittle Fe-Al alloy inner
layer,” and “being tightly adherent to the strip and resistant to
crazing or flaking during bending.” ’549 patent, col. 7, ll. 3-7;
col. 8, ll. 5-9. AK Steel would
like us to interpret those limitations as requiring that the coating metal
contain less than about 10% silicon.
That we cannot do, because, as indicated above, we have concluded
that the claims include coatings with 10% silicon as well as possessing the
recited properties. While the
specification does state that use of a Type 2 but not a Type 1 aluminum
coating results in the four properties recited in the claims, thereby
implying that the percentage of silicon in the aluminum coating must be
quite low in order for the resulting coating to have the claimed wetting
characteristics, that implication does not override the clear meaning of
the claims as both the district court and this court have construed
them. Those claim limitations
speak clearly as including 10% silicon, and that is how we must interpret
them.
AK Steel’s contention that a narrower
construction of the ’549 patent claims is in order under the axiom
that claims should be interpreted to preserve their validity when possible
is also unpersuasive. That
axiom is a qualified one, dependent upon the likelihood that a
validity-preserving interpretation would be a permissible one. In this case, the interpretation
advocated by AK Steel, while possibly avoiding validity pitfalls, cannot be
a correct interpretation, for it is counter to the ordinary meaning of the
claims as well as to the prosecution history.
We recognize that we have interpreted differently two
similar claims supported by the same specification. We are holding that one set of
claims is limited to 0.5% silicon; the other, up to and including about
10%. Such a situation may be
regarded as unusual. However,
that is a necessary consequence of the clear statements in the
specification, as applied to the ’135 patent claims, and the fact of
claim dependency and the prosecution history, as applied to the ’549
patent. The ’135 patent
claims also contain the narrowing term “consisting essentially
of,” which is not in the ’549 patent claims. Thus, our differing constructions of the two patents’ claims is
compelled by all of the relevant facts.
2. Enablement
Given our construction of the ’549 patent
claims, we turn to the question whether the district court properly
determined that those claims have not been enabled.
AK Steel principally argues that the court’s
enablement holding was premised on a faulty claim construction, a point we
have already rejected. AK Steel
further contends that Sollac failed to submit any evidence — let
alone clear and convincing evidence — of undue experimentation, and
that AK Steel is entitled to the presumption of validity, which it contends
is especially weighty. Finally,
AK Steel contends that the patent discloses several embodiments within the
properly construed claim range, and that the patent specification need not
teach the full claimed range in order for the claims to be enabled.
Sollac responds that under the court’s
construction of the ’549 patent claims, they are not enabled in their
full scope. As evidence of
nonenablement, Sollac points to the statements in the specification itself,
as well as AK Steel’s own documents and testimony from its personnel
reflecting their inability to use 9% silicon Type 1 aluminum effectively.
We
agree with the district court that the claims as construed have not been
enabled. The enablement
requirement is set forth in the first paragraph of section 112 of title 35,
which provides in pertinent part that the specification shall describe
“the manner and process of making and using [the invention], in such
clear and concise, and exact terms as to enable any person skilled in the
art to which it pertains, or with which it is most nearly connected, to
make and use [the invention].”
35 U.S.C. § 112, ¶ 1 (2000). The enablement requirement is
satisfied when one skilled in the art, after reading the specification,
could practice the claimed invention without undue experimentation. Wands, 858
F.2d at 736-37.
As we have stated, all of the contested ’549
patent claims read on steel strips containing either a Type 1 or a Type 2
aluminum coating. Furthermore,
the claims require that the coating wet well. The specification undoubtedly
enables the invention in the latter form, as it clearly describes how to
make and use such strips with Type 2 aluminum, and there is no question
that the resulting strips are well-wetted. However, as part of the quid pro
quo of the patent bargain, the applicant’s specification must
enable one of ordinary skill in the art to practice the full scope of the
claimed invention. Wright,
999 F.2d at 1561. That is not to say that the
specification itself must necessarily describe how to make and use every
possible variant of the claimed invention, for the artisan’s
knowledge of the prior art and routine experimentation can often fill gaps,
interpolate between embodiments, and perhaps even extrapolate beyond the
disclosed embodiments, depending upon the predictability of the art. See Genentech, Inc. v.
Novo Nordisk A/S, 108 F.3d 1361, 1366 (Fed. Cir.
1997) (“[A] specification need not disclose what is well known in the
art.”); see also Wands, 858 F.2d at 736-37
(“Enablement is not precluded by some experimentation, such as
routine screening.”). But
it does mean that, when a range is claimed, there must be reasonable
enablement of the scope of the range.
The question more precisely here is whether, with AK Steel’s
patent specification as an initial guide, the hypothetical skilled
artisan’s knowledge of the surrounding art and ability to modestly
experiment would have been sufficient to enable him to make and use a steel
strip containing a Type 1 aluminum coating, with the claimed wetting
attributes, at the time of the ’549 patent’s effective filing
date in 1986.
We
conclude that the specification is inadequate as a matter of law in that
regard primarily because it expressly teaches against it. Worse than being silent as to that
aspect of the invention, the specification clearly and strongly warns that such
an embodiment would not wet well.
In particular, the specification warns that silicon content above
0.5% in the aluminum coating causes coating problems. Such a statement discourages
experimentation with coatings having more than 0.5% silicon, undue or
otherwise. It tells the public
that higher amounts of silicon will not work. Nothing further need be said about
the matter.
Moreover, we disagree with AK Steel’s
contention that Sollac failed to submit evidence that undue experimentation
would be required to enable practice of the claims. Sollac presented documentary and
testimonial evidence from AK Steel that despite its desire to utilize a
Type 1 aluminum coating, it was unable to do so at
the time of the effective filing date.
AK Steel, 234 F. Supp. 2d at 782-83. Furthermore, as explained above, the
specification’s teaching is itself evidence that at least a
significant amount of experimentation would have been necessary to practice
the claimed invention utilizing Type 1 aluminum. In summary, given the
specification’s teaching away from the subject matter that was
eventually claimed and AK Steel’s own failures to make and use the
later claimed invention at the time of the application, the district court
correctly concluded that there was no genuine issue of material fact
relating to undue experimentation as it relates to enablement.
Finally, we dispel the notion that the failure of the
PTO to issue an enablement rejection automatically creates an
“especially weighty presumption” of compliance with 35 U.S.C.
§ 112. AK Steel cites
language in Brooktree Corp. v. Advanced Micro Devices, Inc., 977
F.2d 1555, 1574-75 (Fed. Cir. 1993), to that
effect. However, whether a
patent complies with the enablement requirement depends upon a factually
intensive inquiry regarding the amount of experimentation required, see Wands, 858 F.2d at 737, an
issue to be evaluated on a case-by-case basis. Indeed, the presumption is far from
determinative, and we have on occasion invalidated patent claims as not
having been enabled, despite the PTO’s having allowed those
claims. E.g., Genentech,
108 F.3d at 1368. This is another such case. The specification here itself
plainly tells us that use of aluminum up to about 10% silicon is not
enabled.
To conclude, the specification does not enable a
significant portion of the subject matter encompassed by the contested
claims of the ’549 patent, as properly construed. Accordingly,
we affirm the district court’s judgment of invalidity of those claims
on the ground of noncompliance with 35 U.S.C. § 112, ¶ 1.
3. Cross-Appeal
Finally,
because we affirm the court’s judgment that the contested claims of
the ’549 patent are invalid, we need not reach Sollac’s
cross-appealed issues, which are alternative grounds for reaching the same
judgment.
CONCLUSION
Because the court correctly construed the claims of
the ’135 and ’549 patents,
and there are no genuine issues of material fact disentitling AK
Steel to summary judgments of noninfringement and invalidity, respectively,
as a matter of law, we
AFFIRM.
United
States Court of Appeals for the Federal Circuit
06-1032
INTEL CORPORATION and DELL, INC.,
Plaintiffs-Appellees,
v.
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL
RESEARCH ORGANISATION,
Defendant-Appellant.
_________________________
06-1040
MICROSOFT CORPORATION, HEWLETT-PACKARD
COMPANY,
and NETGEAR, INC.,
Plaintiffs-Appellees,
v.
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL
RESEARCH ORGANISATION,
Defendant-Appellant.
Jeffrey G. Randall, Skadden, Arps,
Slate, Meagher & Flom LLP, of Palo Alto, California, argued for plaintiffs-appellees in appeal 06-1032. Of counsel on the brief for Intel Corporation was
Allan M. Soobert, of Washington, DC. Of counsel on the brief for Dell, Inc. was
Stephen E. Taylor, Taylor & Company Law Offices, Inc., of San Francisco, California.
Barry K. Shelton, Fish & Richardson,
P.C., of Austin, Texas,
argued for plaintiffs-appellees in appeal 06-1040. Of
counsel on the brief for Microsoft Corporation were John E. Gartman and
Joseph P. Reid, of San Diego, California. Of counsel on the brief for Hewlett-Packard
Company was Gregory G. Lavorgna, Drinker Biddle & Reath LLP, of Philadelphia, Pennsylvania. Of
counsel on the brief for Netgear, Inc. were James A. DiBoise, Jennifer A.
Ochs, and Christopher R. Parry, Wilson Sonsini Goodrich & Rosati, of Palo Alto, California. Of
counsel for Netgear, Inc. was Ryan R. Smith.
2
James M. Wagstaffe, Kerr &
Wagstaffe, LLP, of San Francisco, California, argued for defendant-appellant in appeals
06-1032 and 06-1040. Of counsel on the brief were
Daniel J. Furniss and Gary H. Ritchey, Townsend and Townsend and Crew LLP,
of Palo Alto, California; and Nancy L. Tompkins, of San Francisco, California.
Appealed from: United States District Court for the Northern District of
California
Judge Martin J. Jenkins
United
States Court of Appeals for the Federal Circuit
06-1032
INTEL CORPORATION and DELL INC.,
Plaintiffs-Appellees,
v.
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL
RESEARCH ORGANISATION,
Defendant-Appellant.
__________________________
06-1040
MICROSOFT CORPORATION, HEWLETT-PACKARD
COMPANY,
and NETGEAR, INC.,
Plaintiffs-Appellees,
v.
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL
RESEARCH ORGANISATION,
Defendant-Appellant.
__________________________
DECIDED: July 14, 2006
__________________________
Before MICHEL, Chief Judge, PLAGER,
Senior Circuit Judge, and BRYSON, Circuit Judge.
MICHEL, Chief Judge.
In these interlocutory appeals,
Commonwealth Scientific and Industrial Research Organisation
("CSIRO") appeals from orders of the United States District Court
for the Northern District of California in related cases, denying its
motions to dismiss both suits for lack of subject-matter jurisdiction. Intel Corp. v. Commonwealth Sci. and Indus. Research
Org., No. C-05-1886, slip op. (N.D. Cal. Sept. 13,
2005)
("Intel"); Microsoft Corp. v. Commonwealth Sci. and Indus.
Research Org., No. C-05-1894, 2005 WL 2233861
(N.D. Cal. Sept. 13, 2005) ("Microsoft"). Since
we agree that CSIRO is not entitled to claim immunity under the Foreign
Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§
1602-1611, because the "commercial activity" exception applies,
we affirm the district court's orders in this respect. The
appeal is otherwise dismissed insofar as it raises issues not appropriate
for interlocutory review.
I. BACKGROUND
Defendant-appellant CSIRO, Australia's national science agency, is the assignee of
United States Patent No. 5,487,069, directed to wireless local area
networks. CSIRO asserts that the patent covers the
Institute of Electrical and Electronics Engineers ("IEEE")
standards 802.11a and 802.11g, i.e., the preferred specifications for high
speed data transfer.1 Following CSIRO's attempts to
license the '069 patent to various American companies, these
declaratory-judgment actions were filed by Intel Corp. ("Intel"),
Dell Inc. ("Dell"), Microsoft Corp. ("Microsoft"),
Hewlett-Packard Co. ("HP") and Netgear, Inc.
("Netgear").
1
CSIRO's letters initiating licensing negotiations explain that, pursuant
to IEEE's request, it had agreed to grant licenses to the '069 patent on a
reasonable, nondiscriminatory basis.
06-1032 06-1040 2
A. Intel and Dell
In January 2004, CSIRO initiated
licensing negotiations with Dell. Dell
manufactures and sells products that incorporate wireless networking
components purchased from various suppliers, including Intel. Although Dell repeatedly suggested that CSIRO contact
its suppliers instead, CSIRO never contacted Intel directly. In June 2004, counsel for CSIRO sent Dell proposed
licensing terms, emphasizing that its offer was "available for only a
limited time." Under its proposed
arrangement, a licensee was rewarded with a 50% discount in the base
royalty rate if a license was taken within 90 days; after that, the discount
was gradually reduced to 37.5% (<120 days), 25% (<150 days), 12.5%
(<180 days) and 0% (>180 days). CSIRO later
explained that after 187 days, the offer would close and it would then
consider litigation "to block firms that do not take voluntary licenses."2
Around this time, Dell requested that Intel indemnify it against
CSIRO's claims of patent infringement and Intel agreed to do so. (Intel has also agreed to indemnify HP.)
On September 28, 2004, CSIRO formally offered Dell a license, noting
that "this offer is only open for acceptance for a period of 187 days,
after which time the licenses under this Voluntary Licensing Program will
not be available." It included another copy
of the proposed licensing terms and a draft license agreement. On December 20, 2004, CSIRO agreed to a 30-day extension of all the
dates in its offer letter. The voluntary license
offer thus expired on May 8, 2005.
2
Indeed, on February 2, 2005, CSIRO initiated a patent infringement suit
against Buffalo Technology (USA), Inc. and Buffalo, Inc. (collectively
"Buffalo"), in the United States District Court for the Eastern
District of Texas. After the instant suits were
filed, both sets of plaintiffs asked the Judicial Panel on Multidistrict
Litigation to transfer and consolidate their cases with the action against Buffalo, but their motions were denied on October 18,
2005.
06-1032 06-1040 3
On May 9, 2005, Intel and Dell filed a
complaint in the United States District Court for the Northern District of
California, seeking a declaratory judgment of non-infringement and
invalidity with respect to the '069 patent. The
case was assigned to Judge Martin J. Jenkins. On
May 31, 2005, CSIRO moved to dismiss the complaint on the grounds of
insufficiency of process and defective service pursuant to FRCP 12(b)(4)
and 12(b)(5), but the motion was denied. Intel
Corp. v. Commonwealth Sci. and Indus. Research Org., No. C-05-1886,
2005 WL1656903 (N.D. Cal.
July 8, 2005).
On August 1, 2005, CSIRO moved to dismiss for lack of
subject-matter jurisdiction. On September
13, 2005, this motion
was denied as well. The district court first
evaluated whether there was an actual case or controversy as required by
the Declaratory Judgment Act ("DJA"), 28 U.S.C. §§
2201-2202. Despite CSIRO's insistence that
licensing negotiations were still ongoing, it found that the license offer
had expired and that it was objectively reasonable for Dell to be
apprehensive that litigation would be the next step, especially since CSIRO
had already filed one patent infringement lawsuit. Because
the parties agreed that Dell produced an allegedly infringing device, the
court concluded that there was sufficient case or controversy for purposes
of establishing subject-matter jurisdiction under the DJA.
As to Intel, it also had a reasonable apprehension of being
subjected to a lawsuit for patent infringement due to its indemnification
agreement with Dell. Intel, slip op. at 9-12.
The district court then went on to
consider whether CSIRO was immune from suit under the FSIA or whether the
commercial activity exception set forth in 28 U.S.C. § 1605(a)(2)
applied. With respect to Dell, it observed that
"[t]he parties appear to agree that CSIRO's interaction with Dell
constituted commercial activity under the
06-1032 06-1040 4
FSIA."3 Id. at 13. As to Intel, it
noted that "[t]he parties have not cited, and the Court has not found,
a case directly on point." Id. The court denied the motion to dismiss, reasoning
that "CSIRO indirectly engaged in commercial activity with Intel"
because its licensing negotiations with Dell "necessarily implicated
Intel." Id.
CSIRO filed a timely notice of appeal. Intel responded by filing a motion for an order
certifying the appeal as waived or otherwise frivolous, which was denied. The district court again emphasized that it was
unaware of any cases "expressly holding that initiation and
involvement in licensing negotiations over a U.S. patent constitutes
commercial activity sufficient to vitiate sovereign immunity under the
FSIA," although it was "difficult to conceive of how CSIRO's
conduct could be characterized as anything other than commercial." Intel Corp. v. Commonwealth Sci. and Indus.
Research Org., No. C-05-1886, slip op. at 5 (N.D.
Cal. Nov. 11, 2005). Yet, while the court
was not persuaded by CSIRO's argument, it declined to find the appeal
frivolous.
B. Microsoft, HP and Netgear
On April 11, 2003, CSIRO initiated licensing negotiations with HP. During a meeting on January 13, 2004, CSIRO explained its two-phase licensing
program, wherein it would first make a formal licensing offer with royalty
discounts that decreased over time, then pursue litigation against parties
that failed to take a voluntary license. On May 10, 2004, counsel for CSIRO allegedly threatened HP's
in-house counsel with a lawsuit if HP did not take a license. On June 21, 2004, CSIRO extended its formal offer, enclosing its
proposed terms and a draft agreement. On October 13,
2004, CSIRO
3
In its motion to dismiss, CSIRO only argued that it was immune to a
suit filed by Intel, while recognizing that "[i]n contrast, as CSIRO
and Dell have engaged in license negotiations, the [commercial activity]
exception arguably applies." See Intel, slip
op. at 12, n.4.
06-1032 06-1040 5
offered HP a temporary covenant not to
sue (while it asserted the '069 patent against others) for $2.5 million,
but HP did not accept. On December
20, 2004, as the 187-day
offer period was nearing an end, CSIRO wrote HP, reiterating that it
"may decide to take further action against companies which have not
availed themselves of the opportunity to have a voluntary license." Although it was "not threatening to bring
any action against HP at this time," CSIRO stressed that once the
offer expired, a voluntary license "may not necessarily be available
thereafter at any price." A few days later,
the offer expired.
On April 14, 2003, CSIRO initiated licensing negotiations with
Netgear. CSIRO extended its formal licensing offer
on August 10, 2004,
enclosing its proposed licensing terms and a draft agreement. In the months that followed, Netgear made a few
counterproposals, but the parties did not reach an agreement. The voluntary license period ended in February 2005.
On September 29, 2003, CSIRO also contacted Microsoft regarding a
potential license for the '069 patent. A formal
offer, including a copy of proposed licensing terms and a draft license
agreement, was extended on September 20, 2004. The offer expired in March 2005.
Microsoft, HP and Netgear4 filed a complaint in the United
States District Court for the Northern District of California on May 9,
2005, (the same day Intel and Dell filed their complaint), seeking a
declaratory judgment of non-infringement, patent invalidity, patent misuse,
equitable estoppel and laches. On May 31, 2005, CSIRO moved to dismiss the complaint on the
grounds of insufficiency of process and defective service
4 Although Apple Computer, Inc. was originally a party as
well, it voluntarily dismissed its claims without prejudice on June 6, 2005.
06-1032 06-1040 6
pursuant to FRCP 12(b)(4) and 12(b)(5). On June 24, 2005, this case was related to the Intel case and
reassigned to Judge Jenkins. On July 1, 2005, the parties resolved the pending motion via
stipulation.
On August 8, 2005, CSIRO filed a motion to dismiss for lack of subject-matter
jurisdiction, but it was denied on September 13, 2005, for essentially the same reasons described
above. With respect to the question of foreign
sovereign immunity, the district court found that CSIRO's attempts to
secure patent licenses in order to generate royalty income was "not an
activity peculiar to a sovereign state, but [wa]s, instead, a commercial
activity that a private entity would engage in." Microsoft,
at *7. CSIRO filed a timely notice of appeal. Plaintiffs responded by filing a motion for an order
certifying the appeal as waived or otherwise frivolous, which was denied on
November 11, 2005.
We have jurisdiction over these
interlocutory appeals pursuant to 28 U.S.C. § 1292(c)(1).
II. DISCUSSION
Pursuant to the FSIA, "a foreign state
is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a
federal court lacks subject-matter jurisdiction over a claim against a
foreign state." Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). Determining
whether subject-matter jurisdiction exists therefore "entails an
application of the substantive terms of the [FSIA] to determine whether one
of the specified exceptions to immunity applies." Verlinden
B.V. v. Central Bank of Nig., 461 U.S. 480, 498 (1983). On
procedural issues, we apply the standard of review of the regional circuit
"unless the issue pertains to or is unique to patent law." Sulzer Textil A.G. v. Picanol N. V., 358 F.3d
1356, 1363 (Fed. Cir. 2004)
06-1032 06-1040 7
(internal citation omitted). The Ninth Circuit considers "the existence of
sovereign immunity and subject matter jurisdiction under the [FSIA]"
questions of law that are reviewed de novo. Park
v. Shin, 313 F.3d 1138, 1141 (9th Cir. 2002). Even
if these appeals raised issues unique to patent law, this court also
reviews questions of statutory interpretation without deference. Union Carbide Chems. &
Plastics Tech. Corp. v. Shell Oil Co., 425 F.3d 1366, 1373 (Fed. Cir. 2005).
Under the "collateral order"
doctrine, the denial of a claim of immunity is typically appealable
immediately. Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). In
contrast, the denial of a motion to dismiss for lack of subject-matter
jurisdiction on other grounds is generally not subject to interlocutory review. Catlin v. United States, 324 U.S. 229, 236 (1945) ("[D]enial of a motion to
dismiss, even when the motion is based upon jurisdictional grounds, is not
immediately reviewable."). This court,
however, has the power to exercise pendent appellate jurisdiction over
other issues, particularly where they are "inextricably intertwined
with" or "necessary to ensure meaningful review of" a
properly appealed collateral order. Swint v. Chambers County Comm'n, 514 U.S. 35, 51 (1995).
These appeals revolve around the
interpretation of 28 U.S.C. § 1605(a)(2), which provides:
[a] foreign state shall not be immune
from the jurisdiction of courts of the United States or of the States in
any case . . . in which the action is based upon a commercial activity
carried on in the United States by the foreign state; or upon an act
performed in the United States in connection with a commercial activity of
the foreign state elsewhere; or upon an act outside the territory of the
United States in connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the United States.
This is an issue of first impression for
this court.
06-1032 06-1040 8
CSIRO argues that patent licensing
negotiations that do not result in a fully-executed, binding contract do
not qualify as "commercial activity." It
concedes that if its negotiations with potential licensees had been
successful, (i.e., if the proffered license agreement had been signed), it
would not be entitled to claim immunity under the FSIA because the
commercial activity exception would apply. In the
alternative, CSIRO argues that the declaratory-judgment suits are not
"based upon" the alleged commercial activity. We
reject both arguments.
"Commercial activity" is
statutorily defined to mean "either a regular course of commercial
conduct or a particular commercial transaction or act."
28 U.S.C. § 1603(d). The FSIA further
indicates that "[t]he commercial character of an activity shall be
determined by reference to the nature of the course of conduct or
particular transaction or act, rather than by reference to its purpose." Id. Yet, as noted by the Supreme Court, this is not
particularly instructive.
This definition, however, leaves the
critical term "commercial" largely undefined: The first sentence
merely establishes that the commercial nature of an activity does not
depend upon whether it is a single act or a regular course of conduct; and
the second sentence merely specifies what element of the conduct determines
commerciality (i.e., nature rather than purpose), but still without saying
what "commercial" means.
Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 612 (1992).
The legislative history indicates that
the FSIA was meant to "codify the so called 'restrictive' principle of
sovereign immunity, . . . [wherein] the immunity of a foreign state is
'restricted' to suits involving a foreign state's public acts (jure
imperii) and does not extend to suits based on its commercial or private
acts (jure gestionis)." H.R. Rep. No.
94-1487, at 7 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6605. Consequently, "commercial activity" was
broadly defined.
06-1032 06-1040 9
Certainly, if an activity is customarily
carried on for profit, its commercial nature could readily be assumed. At the other end of the spectrum, a single contract,
if of the same character as a contract which might be made by a private
person, could constitute a "particular transaction or act."
Id. at 16 & 6615. But,
Congress did not set forth an exhaustive list of activities which might
constitute "commercial activity." Indeed,
the drafters expressly contemplated that "[t]he courts would have a
great deal of latitude in determining what is a 'commercial activity' for
purposes of this bill." Id.
Considering the meaning of
"commercial activity" in the context of the restrictive theory of
sovereign immunity and the public/private dichotomy it creates, the Supreme
Court has held that the exception to immunity set forth in §
1605(a)(2) applies where the foreign state "'do[es] not exercise
powers peculiar to sovereigns;' rather, it 'exercise[s] only those powers
that can also be exercised by private citizens.'" Weltover,
504 U.S. at 614 (internal citation omitted). CSIRO's acts of (1) obtaining a United States patent
and then (2) enforcing its patent so it could reap the profits
thereof—whether by threatening litigation or by proffering licenses
to putative infringers—certainly fall within the latter category. Indeed, we have expressly recognized, in another
context, that "a patentee's attempt to conduct license negotiations is
a commercial activity." Phillips Plastics
Corp. v. Hatsujou Kabushiki Kaisha, 57 F.3d 1051, 1054 (Fed Cir. 1995).
Nor are we persuaded that a contract
must be fully consummated in order to qualify as commercial activity. Section 1603(d) refers to "a particular
commercial transaction or act," which suggests that this definition
necessarily includes more than just completed transactions. While CSIRO argues that the legislative history sets
the lower boundary of the spectrum at a single contract, we interpret that
sentence as merely providing one example of "a particular commercial
transaction or act."
06-1032 06-1040 10
As to the question of whether the
instant lawsuits are "based on" CSIRO's commercial activities,
neither the FSIA nor its legislative history explicitly define this phrase. The Supreme Court has held that, in the context of
§ 1605(a)(2), "based on" means that the commercial activity
by the foreign state forms "those elements of a claim that, if proven,
would entitle a plaintiff to relief under his theory of the case." Saudi Arabia, 507 U.S. at 357. Although the
Court recognized that it is not "necessarily require[d] that each and
every element of a claim be commercial activity by a foreign state,"
id. at 358 n.4, this interpretation "calls
for something more than a mere connection with, or relation to" the
commercial acts. Id. at 358 (finding that the
plaintiff's employment contract, while commercial in nature, did not form
the basis for his personal injury claims resulting from unlawful detention
and torture by the Saudi government because it was too far removed from the
tortious acts).
Here, we are persuaded that these
declaratory-judgment actions are "based on" CSIRO's commercial
acts of obtaining and asserting a United States patent. In order to
prevail, the plaintiffs-appellees must prove that CSIRO attempted to
enforce its patent against them. Moreover, to the
extent that CSIRO made certain representations as to the scope and validity
of the '069 patent when it proffered licenses to them, these are central to
their claims of non-infringement, invalidity and patent misuse.
* * *
CSIRO further argues that the district
court erred in finding that the plaintiffs had a reasonable apprehension of
imminent suit such that there was an actual controversy within the meaning
of the DJA. Because the orders denying CSIRO's
motions to dismiss are otherwise not properly reviewable on interlocutory
appeal and do not raise
06-1032 06-1040 11
questions that are inextricably
intertwined with our interpretation of the FSIA, we decline to reach this
issue. Regardless, the exercise of pendent
jurisdiction is discretionary and, in our judgment, it should not be
exercised here, even if the issues were inextricably intertwined.
III. CONCLUSION
For the aforementioned reasons, we
affirm the district court's conclusion that CSIRO is not entitled to claim
immunity under the FSIA. Because we decline to
exercise pendent appellate jurisdiction over the question of subject-matter
jurisdiction under the DJA, that portion of CSIRO's appeal is dismissed.
AFFIRMED-IN-PART and
DISMISSED-IN-PART.
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