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                                                  (Filed: February 9, 2018)                        FEB   -   I   2018

    ,<   *****   d<   * * ** * ****        ******       rr   f f *                                U.S. COURT OF
                                                                 {<                              FEDERAL CLAIMS
    PROBIR K. BONDYOPADHYAY,                                     *     Patent Infringement; 28 U.S.C. $ 1498;
                                                                       Summary Judgment;               Direct
                       Plaintiff,                                'i'   Infringement; Doctrine of Equivalents;
                                                                       Insubstantial Differences; Triple
                       v.                                        '''   Identity Test.

    THE UNITED STATES,                                           ,.
                                                                 *
                       Defendant.                                *
                                                                 i{
    ****    ** ** ***          *   {.   ****   {.* +* * *    ***
           Probir K. Bondvopadhav, Ph.D., Houston, TX, pfS gg.

        Benjamin C. Mizer, Gary Hausken, and Alice Suh Jou, U.S. Department of Justice, Civil
Division, Commercial Litigation Branch, Intellectual Property Stafi P.O. Box 480, Ben Franklin
Station, Washington, D.C. 20044, for Defendant.



                                                 OPINION AND ORDER


WILLIAMS,             Judge.

        In this action, Plaintiff oro se Dr. Probir K. Bondyopadhyay.r the inventor of United States
Patent No. 6,292,134 ("the '134 Patent") for a "Geodesic Sphere Phased Anay Antenna System,"
claims that the United States Air Force ("Air Force") infringed Claims 14, 25 and,26 of his patent




'        Dr. Bondyopadhyay received a Ph.D. in electrical engineering from Polytechnic University
of Brooklyn in 1983, and taught electrical engineering and computer science at both New York
Institute of Technology and Maritime College. Tr.7 , 1l.




                                               ?ul,h   3Bt   0   B00B tt308 q003
by using and manufacturing a portion of a phased antenna array system.' This matter comes before
the Court on Defendant's motion for summary judgment.l

                                           Backgrounda

The'134 Patent
       The'134 Patent was issued on September 18,2001, to Piaintiff, inventor Dr. Probir K.
Bondyopadhyay, fiom Application No. 09/513,014 ("the '014 Application") on Februuy 25,20C,0.
The'014 Application claims priority to provisional Application No.60/121,874 filed on February
26, 1999. The '134 Patent consists of 30 claims - - independent Claims 1, 14, 19, and 25, and
dependent Claims 2-13, 15-18,20-24, and 26-30. Plaintiff asserts that the Air Force infringes
Claims 14. 25. and 26 of the '134 Patent.s

       Claim 14 is illuslrative of the invention:

            14. A geodesic sphere phased array antenna system for multi-satellite
       communications and tracking, said antenna system comprising:

       a geodesic structure derived from a truncated icosahedron having twelve
       pentagonal and twenty hexagonal planar faces, a plurality of said geodesic planar
       surfaces each having mounted thereon a subarray of planar antenna element units;


'       In his infringement contentions, Plaintiff also asserts infringement of Claims 1,2, 4, 5,7,
and 10 based on an Air Force Research Laboratory Report published in September 2004, Ihat,
according to Plaintiff, details "the design manutacturing and successful testing of a hexagonal
subarray unit of the Geodesic Structure based on the regular icosahedron." Pl.'s Infringement Br.
4. However, this Court already dismissed Plaintiff s claims of infringement "prior to January I 1,
2008" as time-baned under this Court's six-year statute of limitations, 28 U.S.C. g 2501 (2016);
Bondyopadhvay v. United States, No. l4-147C,2015 WL 1311726,at*5 (Fed. Cl. Mar. 20,2015).
As this Air Force Report was published in 2004, Plaintiff's claims of infringement based on the
Air Force's activity detailed in this report are time-barred and dismissed. Id. ("Any claims prior
to January I I, 2008, are time-barred and dismissed.").

I      In ruling on summary judgment, the Court has considered Plaintiff's "Motion fbr Leave    of
the Court' docketed as Plaintiff's "Motion of the Infringement Phase." (ECF No. 216).

4       This background is derived from the '134 Patent as well as the appendices attached to the
parties' motion papers. This Court's opinions on claim construction and Defendant's partial
motion to dismiss provide additional background. See Bondvoohadyav v. United States , 129 Fed.
Cl. 793,795-800 (2017); Bondvophadhyav, 201-5 WL 1311'/26, at x5. Cirarions to Tr. are to rhe
Court's September 28, 201,6 claim construction hearing. "GA" refers to the appendix to
Defendant's motion for summary judgment.

s      In his "Claims Infringement Brief," filed on March 20, 2017 , following the Court's
September 28, 2016 claim construction hearing, Plaintiff limits his claims of infringement to
Claims 14, 25, and26. Pl.'s Infringement Br.4 ("This work infringed upon Claims 14,25 and 26
of the Plaintiff's U.S. Patent 6,292,134.").
                 transmit and receive signal processing means connected to each said planar
                 antenna element unit of each said subarray for simultaneous transmission and
                 reception of signals;

                  electromagnetic signal feed means connected to each said planar antenna element
                  unit of each said subarray for forming at least one electromagnetic beam in space;

                 electronic switching means for selectively connecting each said planar antenna
                 element unit of said subanays to adjacent planar antenna element unit of said
                 subarray or adjacent subarrays for generating multiple electromagnetic beams in
                 selective diverse directions in space;

                 electronic phase shifting means connected to each said planar antenna element of
                 each said subarray for providing electronic scanning capability to said subarrays
                 of antenna element units connected by said electronic switching means with the
                 phased array communication space hing segmented into a plurality of smaller
                 cellular spaces,

                 each said cellular communication space for electronic scanning being defined by a
                 plurality of discrete chosen directions corresponding to the said geodesic sphere
                 phased array structure and, each said cellular communication space adapted to be
                 electronically scanned by a plurality of active said contiguous phased subarrays
                 corresponding to the said cellular communication space.

'   13   4   P   atent | 2:65   -13   :37   .


Overview of the Invention

        The invention of the '134 Patent is directed to a "geodesic sphere phased affay antenna
system," used for satellite communications. ' 134 Patent Abstract. A geodesic sphere phased array
antenna system consists of a geodesic sphere with a phased antenna .uray mounted onto its planar
surfaces. A geodesic sphere is a collection of multiple flat planes of various shapes such as
triangles, pentagons and hexagons in which the edges of the planes are contiguously linked
together to form a sphere. '134 Patefi 4'.2-6. 5:27-30, 6:4-9. A soccer ball and Disney's Epcot
Center's Spaceship Earth 'golf ball" are well known examples of geodesic spheres.

        A phased array antenna system is a collection of smaller antenna elements that work in a
synchronized fashion to create a stronger communication signal than a single antenna alone by
harmonizing the signals of multiple smaller antennas. This is accomplished by aligning the
"phases" of the smaller antennas - - i.e., the sinusoidal curves tlat send a communication signal -
- which increases the amplitude of that signal. ' 134 Patent I :51 -57; Haupt Decl. l[ 31-32 (Aug.
16,2016). To align these sinusoidal curves, the antennas in the array are connected by a "feed
structure" that energizes, or "feeds," electromagnetic signals to each of the individual antennas in
the array. '134 Patent l:51-5?.
       Figure I of the '134 Patent illusrarcs the invention and depicts a planar triangle 22 studded
with            of antenna elements which, when contiguously linked together, form the geodesic
       a subarray
sDhere structure:




'134 Patent Fig. 1, 4:46-52 ('FIG. 1 is an exploded view showing a phased array antenna of t}re
present invention which comprises substantially equilateral triangular-shaped subarrays of antenna
elements mounted on the faces of a geodesic sphere structure with one of the triangular subarrays
broken away and enlarged for purposes of illustration . . . .").

        The "main objective" of the '134 Patent was to create a "low cost phased anay antenna
architecture that will provide communication coverage over the entire hemisphere." '134 Patent
3:49-52. According to the '134 Patent:

        The most important aspect of this invention is the cellular scanning idea wherein
        the energized portion of the phased array, consisting of the appropria[e number of
        contiguous subarrays thal sets up an electromagnetic beam in a given direction,
        changes with the direction of the beam. The key point of the invention is to limit
        the electronic scanning requirement for any of these beams to a cellular
        communication space which in a preferred configuration, could be bounded and
        defined by the adjacent vertices of the geodesic sphere. The geodesic sphere phased
        array antenna may be so constructed that this scanning requirement is less than 10"
        off broadside within a conical scanning space-

Id. at 10:17-28.

       In other words, the invention calls for an increased number of planar surfaces with phased
array antenna elements to be mounted onto the geodesic sphere. This increase in planar surfaces
permits communication signals to be sent and received from multiple locations simultaneously
along the sphere's surface. '134 Patent 4:15-26; Haupt Decl. J[ 35 (Aug. 16,2016). In addition,
the greater number of planar surfaces divides the hemispheric communication space into smaller
"cellular communication spaces," thus limiting the area that a subarray of antenna elements must
scan to transmit and receive signals to "less than l0' off broadside within a conical scanning
space." '134 Patent l0:21-28. As a result, a given communication signal from the invention
described in the '134 Patent would be stronger and more precise than an antenna that must scan at.
wider angles to transmit and receive communication signals.

The Accused Product

      There is only one accused device at issue - - the Ball Advanced Technology Demonstration
antenna. Since at least 2000, the Air Force Research Laboratory was interested in the feasibility
of a large antenna system called the Geodesic Dome Phased Array Antenna. As part of this
research, the Air Force sponsored a number of small businesses to research and develop technology
required for building a full-scale Ceodesic Dome Phased Anay Antenna. Subsequently, in
November 2006, the Air Force awarded a contract to Ball Aerospace & Technologies Corporation
to develop a Geodesic Dome Phased Array Antenna advanced technology demonstration. CA043.
Accordingly, Ball was "to develop, build, and demonstrate the technological maturity,
manufacturing readiness, and mission effectiveness of a scalable sector" of a Geodesic Dome
Phased Array Antenna. GA030. The Ball Advanced Technology Demonstration antenna was the
result of this research and development.

       The Ball Advanced Technology Demonstration antenna was designed in 2006-07,
manufactured in 2007 -08, and installed at Schriever Air Force Base in Colorado in 2008-09, for
testing and demonstration. The actual demonstration of the Ball Advanced Technology
Demonstration antenna took place between February 2009 and May 2009.

        The Ball Advanced Technology Demonstration antenna, which stood roughly one to two
stories high, was not completely constructed to constitute a full sphere, and was only made up of
six flat panels: a single central pentagonal-shaped panel, sunounded by five outer hexagonal-
shaped panels. Def.'s Mol      7.   The figure below depicts the Ball Advanced Technology
Demonstration antenna constructed by the Air Force:
GA202 (Ball Final Report (US-000151) Fig. 28.

        As explained by Dr. Haupt,6 Defendant's expert. tlis figure shows the six panels that
constitute the Ball Advanced Technology Demonstration antenna array. In Dr. Haupt's opinion,
and, as is obvious from the figure, these six panels are a very small fraction of the anay panels of
a fuff Geodesic Dome Phased Array Antenna. Haupt Decl. fl 10 (Aug. 17,2017). The Ball
Advanced Technology Demonstration antenna is not a "sphere" as defined by the Court in its claim
construction opinion because it is not greater than a hemisphere, as it only had six panels.

      The picture of the Ball Advanced Technology Demonstration antenna appended to the
Complaint shows these six panels as follows:




o        Dr. Randy Haupt is a Professor of Electrical Engineering and Computer Science at the
Colorado School of Mines, with 38 years of experience in phased array antennas. He has a Ph.D.
in Electrical Engineering from the University of Michigan. In 1993, he was named the Federal
Engineer of the Year - - the top engineer employed by the United States Government. He is
currently the chair of the Institute of Electrical and Electronics Engineers ("IEEB) Antennas and
Propagation Society Fellows Committee, and from 1999 to 2014, was a member of the IEEE
Antennas Definitions Working Group that defines government and industry terms for antenna
specifications. Haupt Decl. ffi 4-l I (Aug. 16,2016). This Court accepted Dr. Haupt as an expert
in the fields of electrical engineering, antenna design, antennas for satellite communications, and
phased array antennas. Tr. 103. This Court found Dr. Haupt to be "a well-qualified and credible
expert," whose "testimony was clear and helpful to the Court." Order 2 (Nov. 18, 2016).
Compl. Ex. 3.

        After the demonstration in 2009, the Ball Advanced Technology Demonstration antenna
was disassembled, with one part sent back to Ball Aerospace for further testing, and after 2012,
the Air Force Research Laboratory did not engage in any activities to develop, manul'acture, or test
a Geodesic Dome Phased Array Antenna. Turner Decl. j[![ 9-13.?

Procedural Historv

        Plaintiff originally filed his complaint on February 23,2014. On June 24,2014, Defendant
filed a partial motion to dismiss, arguing that some of Plaintiff's claims were time-barred, while
others arose after his patent expired. The Court granted Defendant's motion on March 20,2015.
Bondyooadh),ay v. United States, No. 14-147C,2015 WL 1311726, at x7 (Fed. Cl. Mar.20,2015).

        Following discovery, the Court conducted a claim construction hearing in Houston, Texas
in order to determine the definition of the term "Sphere" as used within the patent. Following
post-hearing briefing, the Court issued its Claim Construction Opinion on January 18,2017,
agreeing with Defendant that the term "Sphere" should be construed to mean "greater than a
hemisphere so as to provide the phased array antenna hemispherical or wider coverage."
Bondyopadhyay v. United States, 129 Fed. Cl. 793, 807 (Fed. Cl. 2Ol7). In so ruling, the Court
rejected Plaintiff's proposed construction that "Sphere" means "spherical" because such a
construction would "fail to give meaning to the term 'sphere' as a noun that defines the overall
structure of the claimed phased anay antenna." Id. at 804 (citing InreHvatt,708F.2d712,714
(Fed. Cir. 1983) ("A claim must be read in accordance with the precepts of English grammar.")).
Following that decision, Defendant filed its motion for summary judgment on August 23, 2017,
and Pfaintiff filed his "Motion of the Infringement Phase" on October 5, 2017. Briefing was
completed on November 8, 2017, and the matter is now ripe for disposition.

                                           Discussion

Jurisdiction
       This Court has subject-matterjurisdiction over this action pursuant to 28 U.S.C. $ 1498(a),
which provides in relevant part:

       Whenever an invention described in and covered by a patent ofthe 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 t]rc same, {he 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.




'       Roger K. Turner is the Deputy Chief, Navigation and Communication Branch, Sensors
Directorate at the United States Air Force Research Laboratory at Wright-Patterson Air Force Base
in Ohio.
28 U.S.C. $ 1498(a) (2016). Because Plaintiff is the inventor and owner of the '134 Patent, and
accuses the Air Force of making and using a geodesic sphere phased array antenna as claimed in
the ' 134 Patent without lawful rights, this Court has jurisdiction.

Summarv Judsment Standard

        Summary judgment is appropriate where there is "no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law." RCFC 56(a); see also Anderson
v. Liberty Lobby. Inc., 477 U.S- 242,247-48 (1986). A genuine dispute is one that "may
reasonably be resolved in favor ofeither party." LibertyLobby,4TT U.S. at 250. A factis material
if it "might affect the outcome of the suit." ld. at 248. The moving party bears the burden of
establishing the absence of any material fact, and any doubt over factual disputes will be resolved
in favorof the nonmoving party. Minsus Constructors. Inc. v. United States,8l2F.2d 1387, 1390
(Fed. Cir. 1987). Once this burden is met, the onus shifts to the nonmovant to present evidence
from which a finder of fact might rule in his favor. If he does so, there is a genuine issue of lact
that requires a trial. Libertv Lobby,477 U.S. at257.

        When considering a motion for summary judgment, a court does not weigh each side's
evidence, but views the inferences to be drawn from the underlying facts in the light most favorable
to the party opposing the motion. United Stat€s v. Diebold. Inc., 369 U.S. 654,655 (1962) (per
curiam). When opposing parties both move for summary judgment, "the court must evaluatre each
party's motion on its own merits, taking care in each instance to draw all reasonable inferences
against the party whose motion is under consideration." Minzus Constructors,812 F.2d aI139l.

Literal Direct Infringement
         Infringement is a question of fact. Absolute Software. Inc. v. Stealth Signal. Inc., 659 F.3d
 I l2l, lI29-30 (Fed. Cir. 201 1). As such, a grant of summary judgment of noninfringement is
proper when no reasonable factfinder could find that the accused product contains every claim
limitation or its equivalent. PC Connector Sols.. LLC v. SmartDisk Corp.. 406 F.3d 1359, 1364
(Fed. Cir. 2005); see Warner-Jenkinson Co.. Inc. v. Hilton Davis Chem. Co.. 520 U.S. 1'7,29,39
n.8 (1997). Evaluation of noninfringement is a two-part inquiry: "first, a court consrues the scope
and meaning of the asserted patent claims, and then compares the construed claims to the accused
product or process." Medsraph. Inc. v. Medfonic. Inc.,843 F.3d 942,949 (Fed. Cir.2016).

       In undertaking the first step ofthis process, this Court construed the term "Sphere" to mean
"greatq than a hemisphere so as to provide the phased array anienna hemispherical or wider
coverage." Bondyooadhyay, 129 Fed. Cl. at 804.

        In comparing the construed claim to the accused device, the Court finds that in order to
directly infringe the patented device, the Ball Advanced Technology Demonstration antenna
would be required to be greater than a hemisphere such that it provided hemispherical or wider
coverage. It is undisputed that the partially completed Ball Advanced Technology Demonstration
antenna neither meets the spatial definition nor provides the requisite coverage. The Ball
Advanced Technology Demonstration antenna is a six-panel structure designed to be a testable
part of a larger geodesic dome phased array antenna - one pentagon-shaped panel at the center
surrounded by five hexagonal panels. In contrast, Claim 14 of the '134 Patent described the
structure as having 12 pentagonal and 20 hexagonal planar faces. '134 Patent 14:36-38.
        The Ball Advanced Technology Demonstration antenna was only capable of providing a
field of view of 120 degrees, well short of the 180 degrees required for hemispherical coverage.
GAlll; Haupt Decl. 1[J[ 16-17 (Aug. 11,2017). Indeed, rhe Ball Advanced Technology
Demonstration antenna required mounting on a steel fiame to allow it to be manually rotated in
order to test communications with satellites anywhere in the sky. GA076. In contrast, the
lundamental objective of the patented invention is to provide a phased antenna array capable of
providing at least hemispheric coverage, thereby allowing it to communicate with any satellite in
the sky without having to be repositioned to directly face that satellite. The Demonstration antenna
is substantially different than the patented invention.

        Plaintiff advances two arguments in support his contention that the Ball Advanced
Technology Demonstration antenna infringed his patent: 1) Claim 14 was directed to a "geodesic
structure" rather tlan a "sphere" ("[T]he 'sohere' word is NOT the critically relevant one in this
Phased Anay Antenna design case. The explicitlv stated KEY DEFINING WORD is GEODESIC
STRUCTURE."); and 2) because the definition accorded to the term "sphere" by the court as a
result of claim construction does not literally appear in the patent, such a definition must be
inconect. ("NONE of the following ten words . . . are there in the said Claim 14. (or for that matter
in anv of the Claimsl; 'to provide the phased arrav antenna hemisoherical or wider coverase")
Pl.'s Third Resp. to Claim Construction Op. 6 (ECF No. 211); Pl.'s Resp. to Def.'s Mot. ro Bar t5
(ECF No. 224) (emphasis in originals).

        Both arguments merely repeat arguments rejected by the Court in the claim construction
phase of this case. The Court ruled:

       In sum, three factors persuade the Court that the preambles recited in independent
       Claims l, 14, 19, and25limit all claims to sphere shaped structures. First, the body
       of the independent Claims I, 14, 19, and 25 each derive meaning from the term
       "sphere" in their preambles. Second, every dependent claim refers to its
       corresponding independent claims as "geodesic sphere phased array antenna."
       Third, the '135 Specihcation defines t}re "present invention" as a "geodesic sphere
       phased array antenna."

Bondyooadhyay, 129 Fed. Cl. at 804.

         Similarly, in arguing that the ' 134 patent does not contain the words "to provide the phased
array antenna hemispherical or wider coverage" Plaintiff attempts to reJitigate the Court's
construction of the term "sphere-" This Court sees no reason to revisit its claim construction. See
Del Mar Avionics. Inc. v. Ouinton Instrument Co., 836 F.2d 1320,1324 (Fed. Cir. 1987) (finding
that prior findings and the claim construction based on those findings are law ofthe case and "are
not available for redetermination"); see also Anderson Com. v. Fiber Comoosites, LLC,474 F.3d
1361,1371n.2 (Fed. Cir. 2007) (stating that. district court's claim construction was law of tne case
for purposes of trial).

        In sum, because the Court has found the term "sphere" to mean "greater than a hemisphere
so as to provide the phased array antenna hemispherical or wider coverage," and because it is
undisputed that the alleged infringing device as constructed was not greater than a hemisphere and
was incapable of providing hemispherical or wider coverage, the accused device does not literally
infringe Plaintiff's patent.
Direct Infrinsement Under the Doctrine of Eouivalents

        The Court next turns to whether the device could be found as infringing under the doctrine
of equivalents. Under the doctrine of equivalents, "a product or process that does not literally
infringe upon the express terms of a patent claim may nonetheless be fbund to infringe if there is
 'equivalence' between the elements of the accused product or process and the claimed elements of
the patented invention." Warner-Jenkinson Co., -520 U.S. at 2l. In Warner-Jenkinson Co. the
Supreme Court identified two possible approaches to analyze whether there is equivalence: the
"insubstantial differences" approach and the "triple identity test." The "insubstantial differences"
lest looks to whether the element asserted to be an equivalent in the accused device is
insubstantially different from the claimed element. The "triple identity test" focuses on: l) the
function served by a particular claim element; 2) the way that element serves that function; and 3)
the result thus obtained by that element. Id. at 39.

        Regardless of which test is applied to the alleged infringing device here, Plaintiff cannot
establish infringement under the doctrine of equivalents. First, under the "insubstantial
differences" approach, courts have noted that a "fundamental difference between the accused
systems and the claimed invention that goes to the heart ofthe claimed invention" may preclude a
finding of equivalence. Tech. Patenrs LLC v. T-Mobile (UK) Lrd., 700 F.3d 482,500 (Fed. Cir.
2012). In this case, the patented invention plainly describes a "sphere," and this Court construed
the term "sphere" to mean "greater than a hemisphere so as to provide the phased array antenna
hemispherical or wider coverage." The six-panel structure of the Ball Advanced Technology
Demonstration antenna did not provide hemispheric or wider coverage. Haupt Decl.9[ l7 (Aug.
 17,201'7). Because this difference between the invention claimed in the '134 patent and the Ball
Advanced Technology Demonstration antenna is fundamental and goes to the heart of the claimed
invention, Plaintiff has not established equivalence or infringement under the "insubstantial
differences" approach.

         Under the "triple identity test," PlaintifT must show that the accused device performs
substantially the same function as the patented device in substantially the same way to achieve
substantially the same result. Warner-Jenkinson Co., 520 U.S. at 40. Here, as Defendant a-rgues,
Plaintiff cannot meet this burden because the function of Plaintiffs geodesic "sphere" antenna
array is to provide hemispherical or wider coverage, using a large number of planar surfaces and
vertexes to create beams in many directions, resulting in is ability to communicate with any
satellite in the sky without mechanically rotating the antenna array. Def.'s Mot. 16-17. On the
other hand, the function of the Ball Advanced Technology Demonstration antenna was to
demonstrate a "scalable sector" of a Geodesic Dome Phased Affay Antenna using a very small
fraction of the aray panels of a full Geodesic Done Phased Aray Antenna. GA030; Haupt Decl.
j[ l0 (Aug. l'7,2Ol'7). So too, the way the claim element would provide hemispherical or wider
coverage and the resultant coverage are radically different in the claimed element and the accused
device. The Ball Advanced Technology Demonstration antenna had to be mounted on a static,
steel frame during testing and demonstration, because it was incapable of providing hemispheric
or greater coverage, and could not communicate with any satellite in the sky without movement.
Thus, because the main objective of the '134 patent was to provide a phased array antenna with
hemispheric or wider coverage and the Ball Advanced Technology Demonstration antenna
definitively did not provide hemispheric or wider coverage, the accused device did not perform



                                                l0
substantially the same function in substantially the same way to achieve substantially the same
result.

        Although the Ball Advanced Technology Demonstration antenna was commissioned to
prove the feasibility of a future antenna which might have, if constructed, been considered
infringing, that future antenna was never built. Courts have recognized that infringement does not
occur in the absence of an actual infringing device being created. See FastShip LLC v. United
States, 122 Fed. Cl. 71, 86 (Fed. Cl. 2015) (holding that a device which was incomplete and
inoperable at the time when the patents-in-suit expired was not "manufactured" for purposes of
Section 1498(a) and thus could not infringe the patent); see also deGraffenried v. United States,
25 Cl. Ct. 209,212 (Cl. Ct. 1992) (accused device which was ordered but not assembled or
delivered until after expiration of the patent did not infringe).

                                           Conclusion

         In sum, because the Ball Advanced Technology Demonstration antenna was incapable of
providing hemispheric or great€r coverage, it did not literally infringe the '134 patent. Under
either test for infringement under the doctrine of equivalents, the accused device cannot be found
as infringing. Accordingly, Defendant's motion for summary judgment is GRANTED, and
Plaintiff s "Motion of the lnfringement Phase" (ECF No. 216) is DENIED. The Clerk is directed
to enter judgment for Defendant. No costs.




                                                             LEN COSTER WILLIAMS




                                               11
