All the Right Elements, but cert. den’d to Zoltek.

The issues, including that the method patented in the U.S. was practiced overseas, in part, but that the ultimate products were used by the U.S. government, and that such use might be compensable as a “taking” under the 5th Amendment, even though a Tucker Act claim “arising in a foreign country” would not lie against the U.S., were ripe in Zoltek v. U.S. Process infringement overseas, the 5th Amendment, scope of claims against the U.S. when its contractor allegedly infringes, compulsory licenses – would not these issues bear as much scrutiny by the Supreme Court, or regard federal issues as important as those presented in eBay v. MercExchange, or MedImmune v. Genentech, or KSR v. Teleflex?  Indeed, were not the issues in those cases more narrow, less constitutional, or marginally contractual claims? Nonetheless, the Supremes denied the patentee’s cert. petition in Zoltek v. U.S., and the Federal Circuit’s per curiam opinion of two concurrences and a dissent, stands.  Zoltek will not add to the patent jurisprudence of the Roberts Court, nor will it take a place alongside Kelo v. New London in the area of “takings.” Zoltek, aside from being a good stock pick, is a case that reminds me of this scenario.  The patentee cannot get discovery about the infringer’s customers.  Defendant’s refusals are weakly addressed by the Magistrate – ‘why can’t you lawyers work this out?’  After a ruling of infringement, the patentee moves for injunctive relief.  Defendant’s veil then is opened, to show that the prime “customer” is an agency of the U.S.  The district court rules it has no jurisdiction over that part of the claim, and the patentee is left to start anew in the Claims Court (CFC).  Had the Supreme Court accepted the Zoltek case, it might have addressed open issues, including Judge Newman’s observation, almost twenty years ago, that redress for infringement by the federal government “within the meaning of the fifth amendment, has not been tested in the courts.”  Trojan, Inc. v. Shat-R-Shield, 885 F.2d at 857 (denying injunctive relief against infringer selling to our government).Perhaps it is too much to expect the Supremes to accept any more patent cases for awhile.Perhaps it is too much to expect the Supremes to accept any more patent cases for awhile.Perhaps it is too much to expect the Supremes to accept any more patent cases for awhile.