• Limitation on Government Liability for Infringing Imports Reversed
• Protest Costs Denied Despite Corrective Action

• Final Rules Amend EAR's Entity List
• SBA Rule Implements Early Stage SBIC Initiat

• Wireless Services — $750 Million
• Detection Systems and Parts — $579 Million
• AH-64D Aircraft — $486 Million
• Cranes — $327 Million
• Laboratory Supplies — $240 Million
• Infrastructure Protection Solutions — $228 Million

Limitation on Government Liability for Infringing Imports Reversed

In an en banc decision with one dissent, the Court of Appeals for the Federal Circuit vacated an earlier panel decision and reversed a Court of Federal Claims decision because the panel decision incorrectly determined there was no government liability for patent infringement under 28 USC 1498(a) if part of the patented process was performed outside the United States. Alleging carbon fiber products used in the F-22 fighter plane infringed its patent, a third party filed suit against the government under §1498(a), which provides a remedy against the government in the CFC for patentees whose patents are "used or manufactured" by government contractors acting with the government's "authorization or consent." The Federal Circuit determined the panel's decision either deprived a patentee of a cause of action against both the government and contractors or "create[d] the possibility that the [government's] procurement of important military matériel could be interrupted via infringement actions against government contractors--the exact result §1498 was meant to avoid." (Zoltek Corp. v. U.S., CA-FC, 56 CCF ¶79,788)

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Protest Costs Denied Despite Corrective Action

A request for reimbursement of the costs of filing and pursuing protests was denied because the initial protest was not clearly meritorious and the government took prompt corrective action in response to the supplemental protest. The corrective action on the supplemental protest was prompt because the government acted prior to the deadline for submitting its supplemental report. With respect to the initial protest, the source selection authority’s recognition of technical advantages associated with a more compatible solution did not constitute an improper unstated technical preference. (LGS Innovations LLC, 27 CGEN ¶113,733)

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Final Rules Amend EAR's Entity List

Two final rules issued by the Bureau of Industry and Security amend the Export Administration Regulations' Entity List (Supplement No. 4 to EAR Part 774). The first rule (¶72,750.256) adds 16 persons under 18 entries to the Entity List. The effective date of this rule is April 27, 2012. The second rule (¶72,750.255) adds two persons located in France to the Entity List. This rule also implements changes arising from the annual review of the Entity List conducted by the End-User Review Committee. The effective date of this rule is April 25, 2012.

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SBA Rule Implements Early Stage SBIC Initiative

The Small Business Administration has finalized a rule addressing early stage small business investment companies. The rule revises SBA's regulations at SBA Part 107 to define a new sub-category of SBICs which will focus on making equity investments in early stage small businesses. By licensing and providing SBA leverage to these types of SBICs, SBA seeks to expand entrepreneurs' access to capital and encourage innovation as part of President Obama's Start-Up America Initiative launched on January 31, 2011. The effective date of the rule is April 27, 2012. For the text of the rule, see ¶70,425.460.

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