Shaw was under contract by the Federal government to clean up a plot of lead-contaminated land. It had a detailed work plan that was signed off by the government. When sued...

Shaw moved for summary judgment on the ground that pursuant to its contracts with the government and to 28 U.S.C. § 1498(a), the United States was the proper defendant, and that the suit should therefore be dismissed. The district court, adopting the report and recommendation of the magistrate judge, agreed and entered judgment in favor of Shaw. Sevenson Envtl. Servs. v. Shaw Envtl., Inc., No. 02-CV-527 (W.D.N.Y. Mar. 22, 2006).

Shaw is off the hook if its infringing use is "for the Government" and the use is "with the authorization and consent of the Government."

B. Section 1498(a)
The relevant statutory provision reads as follows:
(a) Whenever 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, the owner’s remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.
* * *
For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States.

28 U.S.C. § 1498(a). Because Shaw is a contractor, its use of the patented method qualifies as “use . . . for the United States,” and it is thus immune from suit except “by action against the United States in the United States Court of Federal Claims,” if two criteria are met: (1) the use is “for the Government”; and (2) the use is “with the authorization and consent of the Government.” Id.; see Hughes Aircraft Co. v. United States, 534 F.2d 889, 897–98 (Ct. Cl. 1976).

The text of the statute contains an awkward circularity: use “for the United States” is defined as use that is both “for the Government” and “with the authorization and consent of the Government.” In context, the “for the Government” prong of the definition appears to impose only a requirement that the use or manufacture of a patented method or apparatus occur pursuant to a contract with the government and for the benefit of the government.

In similar cases, where infringing activity has been performed by a government contractor pursuant to a government contract and for the benefit of the government, courts have all but bypassed a separate inquiry into whether infringing activity was performed “for the Government.” Instead, the inquiry has reduced to the “very simple question” of whether the plaintiffs “establish that the government authorized or consented to the . . . infringement . . . , if such infringement in fact occurred.” Auerbach v. Sverdup Corp., 829 F.2d 175, 180–81 (D.C. Cir. 1987) (applying the parallel copyright infringement provisions of 28 U.S.C. § 1498(b)); see also Carrier Corp. v. United States, 534 F.2d 244, 247 (Ct. Cl. 1976) (proceeding, after a determination that infringing use of a patented device was not directly “by the Government,” to an analysis of whether the government authorized and consented to the infringing use).

Any dispute about whether another method would have benefited the government equally without infringing Sevenson’s patent rights goes to whether the government “authoriz[ed] and consent[ed]” to this particular use.

Where, as here, a government contract contains an explicit authorization and consent clause (and the parties have alleged no alternative source for government authorization and consent), the scope of the government’s authorization and consent to liability naturally hinges on the language of that clause... In this case, ... the authorization language of the contract is broad enough.

Sevenson's only recourse is to pursue the Feds in the Court of Federal Claims.