BREAKING NEWS: Liberty Ammunition LOSES M855A1 EPR Appeals Lawsuit in Federal Claims Court, US Army CLEARED

The lead-free M855A1 5.56mm cartridge.

The lead-free M855A1 5.56mm cartridge.

The United States government has won a major firearms-related victory in Federal appeals court today, regarding claims of patent infringement by Liberty Ammunition, LLC. Liberty had claimed that the US Army’s M855A1 EPR and M80A1 EPR projectiles infringed on its patent, US 7,748,325 for a multi-piece construction projectile. The claims court this case was submitted to ruled in favor of Liberty, but today that decision has been overturned by the Federal appeals court, which is the “final word” on the case (unless it somehow gets taken to the Supreme Court, an unlikely event).

To understand why Liberty (I believe, correctly) lost the appeals case, we need to take a look at their patent and some text from the decision. Patent ,325 essentially makes two major claims, called Claim 1 and Claim 32:

1. A projectile structured to be discharged from a firearm, said projectile comprising:

a body including a nose portion and a tail portion,
said body further including an interface portion disposed in interconnecting relation to said nose and tail portions, said interface portion structured to provide controlled rupturing of said interface portion responsive to said projectile striking a predetermined target,
said interface portion disposed and dimensioned to define a reduced area of contact of said body with the rifling of the firearm, said interface portion maintaining the nose portion and tail portion in synchronized rotation while being fixedly secured to one another by said interface portion whereby upon said projectile striking said predetermined target said interface portion ruptures thereby separating said nose and tail portions of said projectile.

32. A projectile structured to be discharged from a firearm, said projectile comprising:

a body including a nose portion and tail portion,
said body further including an interface portion disposed intermediate opposite ends of said body in interconnecting relation to said nose and tail portions, said interface portion structured to provide controlled rupturing of said interface portion responsive to said projectile striking a predetermined target, said interface portion maintaining said nose portion and tail portion in synchronized rotation while being fixedly secured to one another by said interface portion whereby upon said projectile striking said predetermined target said interface portion ruptures thereby separating said nose and tail portions of the projectile; and
said exterior surface of said interface portion disposed and structured to define a primary area of contact of said body with an interior barrel surface of said firearm.

Claim 1 essentially boils down to a claim about an interconnecting segment of the projectile which has some characteristics shared with driving bands used in larger-caliber cannon projectiles (this is the “reduced area of contact” stated in the patent). Claim 32 further refines the nature of this segment, stating that it is “disposed intermediate opposite ends of said body”; the vague wording here became a major contention in the case. Forty other claims were also given in the patent, but these are dependent claims, so any projectile which does not meet 1 and 32 cannot infringe on the other claims.

The first claim of infringement is that the M855A1 projectile constitutes one with “reduced area of contact” between the projectile and the bore, but as the appellate judge noted below, there are significant problems with Liberty’s argument to this effect:

The trial court’s failure to properly apply the exacting “objective boundaries” standard from Interval is well illustrated by the parties’ application of the trial court’s construction. Together, the parties’ experts examined a vast number of different 5.56 mm projectiles as baselines for the accused M855A1 round, twenty-six in total. Yet, Liberty’s expert did not include the accused M855A1 round’s predecessor—the M855—among the seven baselines that he tested, despite the M855 round being the only prior art projectile described in the ’325 patent and his own testimony that there is no reason not to use the M855 round for the baseline. For the accused M80A1 round, the experts examined fifteen 7.62 mm baseline projectiles, four coming from Liberty’s expert and eleven from the Government’s expert. Although Liberty’s expert did include the accused M80A1 round’s predecessor—the M80—as an M80A1 baseline in his expert report, he later acknowledged that his test of the M80 projectile was flawed. Trial Ct. Op., 119 Fed. Cl. at 392 n.36. He did not retest the M80 and did not testify about the comparison between the M80A1 and the M80 at trial. Id.

In other words, when trying to establish a baseline for what a “normal” area of contact looks like, as opposed to “reduced” contact, Liberty left out the M855 projectile, probably the most common 5.56mm projectile in military use today, and the very one M855A1 was designed to replace. Versus M855 (and most other 5.56mm projectiles, for the record), M855A1 has a greater area of contact, not a reduced one, and therefore does not infringe on Claim 1.

The very essence of the “intermediate opposite ends” limitation is to define a precise position for the interface: between the nose and tail ends of the projectile. The trial court’s construction chips away at this precision by permitting an interface that is not only between the opposing ends, but also outside that position to read on the claim language. As such, the construction is broad enough to cover a traditional full metal jacket surrounding the entire projectile, a fact which Liberty’s counsel acknowledged and embraced at oral argument.

In other words, Liberty tried to argue that Claim 32 could include projectiles with full jackets, something that the patent does not illustrate and the wording does not appear to support. This claim also does not pass the “prior art” test, as under Liberty’s definition, M855 itself would be infringing on Claim 32.

So, rightfully so, I think, the court ruled that the Army has not infringed on Liberty’s patents, in the case of both M855A1 and M80A1.

If you want to learn more about the development of the M855A1 EPR projectile, I highly recommend Colonel Glenn Dean’s very short overview of the programIn Search of Lethality: Green Ammo and the M855A1 Enhanced Performance Round.



Nathaniel F

Nathaniel is a history enthusiast and firearms hobbyist whose primary interest lies in military small arms technological developments beginning with the smokeless powder era. In addition to contributing to The Firearm Blog, he runs 196,800 Revolutions Per Minute, a blog devoted to modern small arms design and theory. He can be reached via email at nathaniel.f@staff.thefirearmblog.com.


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  • Evan

    So, from my layman’s understanding Liberty was essentially trying to enforce an unenforceable patent, with their too-vague language, and cherry-picking outdated service rounds for comparison in Claim 1 while, as you noted, leaving (now-X)M855 out of their illustration?

    • I think Liberty’s patent is enforceable, if you happened to create a projectile that looked exactly like theirs.

      Regarding M855A1? I think this is an obvious case of patent trolling.

      • milesfortis

        And if it was patent trolling, Uncle is most certainly the wrong
        entity to try and roll for reasons that should be apparent to anyone.

  • Joshua

    *grumpy cat good*

  • CrankyFool

    So does this make M855A1 availability to the civilian market happen faster, or slower?

    • Liberty was not ever going to sell true M855A1 equivalents, although they wanted people to think they would.

    • PK

      I don’t think this changes anything at all. Don’t hold your breath.

  • @nathaniel_f:disqus Will this mean that it is possible for NATO to standardize and Deploy M855A1 and M80A1 without having to pay a royalty to the US? How likely is it for NATO to adopt the EPR projectiles?

    • NATO has a substantially different interpretation of the Hague convention than the US does, so it seems unlikely that they would adopt the EPRs.

      Now, having said that, I think one of the challenges facing NATO right now is that their standardization is sort of breaking down. The US has adopted four new standard rounds that aren’t really NATO rounds, the UK has adopted two new NATO rounds, and Australia has adopted a new 5.56mm round.

      If I were in charge of NATO small arms ammunition standardization, I would be pretty worried right now, and I might be inclined to bend a little bit and make the Americans happy just to maintain standardization.

      • Paul

        True, but they can all of those new rounds can still be fired out of any NATO spec weapon, so it still meets muster. The bigger issue with NATO is the caliber of the weapon, not so much the bells and whistles of a specific cartridge.

    • GD Ajax

      Europe likes to use the same round for their rifles and machine guns. Unlike us who for some reason don’t like having a reduced logistics trail.

      • Mystick

        I think that may be because the US military is the best in the world at moving materiel from Point-A to contact with the enemy. Logistics is a Martial Art(and not the karate kind)

      • Evan

        M855 was adopted because it worked better out of the M249, little or no thought was given to the fact that XM193 worked better out of M16 and M4; they were worried about keeping the 249s up and running…
        The 249 also happens to be the least reliable small arm in the current US arsenal, but accounts for the majority of casualties in infantry combat.

        It makes sense if you’ve studied modern infantry tactics.

  • MindMelder

    So how long until I get know snot of of some plates with it?

    • Big Daddy

      I was thinking the same thing. Is this considered armor piercing or not?

      • Reuben Geiser

        Have you seen videos of it? It makes m855 look like a dull butter knife, and you know how crazy the libs went over THAT ‘armor piercing’ round!

        • AC97

          For goodness’ sake, that’s not how the law works. The way the law works is based off of bullet composition, as opposed to actual armor-piercing ability, hence the reason you can have copper pistol bullets that can go through armor (for instance, 5.7×28 T6B ammo, among other things).

          Directly from the ATF website:

          “A projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or

          -A full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.”

          To answer Big Daddy’s question, as far as I know, this round isn’t considered armor piercing, because it doesn’t fall under either category.

          • Reuben Geiser

            Correct me if I’m wrong, but the m855a1 is indeed made out of a combination of only steel and copper, and it can be fired from an AR15 pistol. The m855 has lead in it and therefore is not a valid combination.

          • AC97

            IIRC, the tip is made out of some kind of alloy, and it didn’t fall under the AP definition with the combination it had, I think Nathaniel F. needs to chime in here, because I’m not sure about that.

          • The wording of the AP law trips people up constantly. Contrary to popular belief, the AP ban does not say anything about copper, what it talks about is a material called “beryllium copper”, which is an alloy. Many people read this and think “beryllium, copper”, but it’s actually one term referring to one material. The core of M855A1 is just plain old copper, and so according to the law it wouldn’t be banned.

            Now, what will the ATF do? No idea.

          • Logic Rules

            ///”The core of M855A1 is just plain old copper, and so according to the law it wouldn’t be banned.”///

            Your statement about the core being copper may be incomplete as it implies one single core…

            During the recent dispute over the ATF removing the AP designation exemption from M855 (many people forget that it has a specific exemption), there was much argument about whether it qualified as AP and whether it even needed an exemption in the first place. Many argued that since the core (singular) was approximately 2/3 lead, then it wasn’t “constructed entirely (excluding the presence of traces of other substances) from one or a combination of…[listed metals].”

            A counter argument to this that was put forth (I forget if it was just someone’s theorizing or if there was an actual ATF reference) that the lead and steel portions were considered to be two separate cores such that the steel portion/core by itself met the definition listed in the law. To support this viewpoint, they posted some decades old documents on some projectile design (I don’t think it was the M855/SS109 specifically, but I’m not sure) that contained multiple components, and the documents did indeed refer to the projectile as having a core of one material along with a core of another material. So there is precedent for that position.

            Though I would counter that if a different type of material is to always be considered a different core, then there could not exists such a core that is “constructed…from…a combination of…[listed metals]” which the law implies does exist. If a law is interpreted in such a way that that the law then describes something that can’t exist, then that interpretation must be wrong.

            Of course, someone could then raise the question of whether the two materials are bonded together and if that makes any difference, but that’s another rabbit hole to explore on another day. I personally don’t believe that M855 or M855A1 are AP as defined in the law, but that may not matter considering that the ATF always comes down on the side that screws over the law-abiding people even if it does little or absolutely nothing to affect crime or safety.

          • KestrelBike

            They’ll issue a letter to “clarify” and give “guidance” as to why M855A1 meets the characteristics of banned projectiles.

          • Vanns40

            Which is exactly why we need to take regulatory authority away from ATF. Congress giveth and Congress can taketh away. Let them (ATF) go through Congressional approval (law making) on anything they want to do, otherwise, tough.

          • sadlerbw

            If I recall correctly, Beryllium copper is some nasty stuff to work with. Like, you have to take extra precautions when machining it because BC dust is a very serious carcinogen. However, it is non-spark-producing so it shows up in metal tools for use in places where you REALLY don’t want a spark.

          • milesfortis

            Wrong kind of copper.
            The copper slug in 855A1 is elemental Copper, not Beryllium Copper.

          • zardoz711

            >For goodness’ sake, that’s not how the law works. The way the law works is based off of bullet composition, as opposed to actual armor-piercing ability,
            Tell that to the BATF in regards to 7n6!

          • GPSrulz

            Due to the AR pistol and the like, I’m sure the ATF will argue it’s a handgun round and the .22 mentioned in 1968 GCA referred to the .22LR and .22Mag.

          • Al

            5.56 mm = .218 superbee / but / in truth all of the projectiles being used by the military (called 5.56mm) and being discussed are .224 (same as the .22 short, .22 long, .22 long rifle, .22 mag) varying grain weights, but all .224

          • Kivaari

            Remember the bore is usually measured as the original hole drilled prior to rifling. A 7mm rifle is a .276 that is then rifled to .284. A “.22” is often .2188 bored to .223-224 and some up to .228.

          • Al

            True and correct, but, this discussion is about the bullet (round) and the ATF regulation concerning the “greater than .22”. None of these (being discussed) are greater than the .22 round (used as a reference point) in the regulation. You will find the M193, SS109, and M855 rounds in the .224 reloading and ballistics charts (under government) used by loaders, manufacturers, and hunters.

      • Audie Bakerson

        Your daily reminder the LEOPA was not only endorsed but written by the NRA, Americas most successful civilian disarmament advocates.

        • DonDrapersAcidTrip

          Nothing furthers the cause of firearm ownership like ridiculous hyperbole

          • Audie Bakerson

            What’s hyperbolic?

            Bloomberg WISHES he could be responsible for passing the Gun Control Act like the NRA was. I’m sure he’s also grateful a group so eager to compromise is ensuring donations don’t go to an organization that is really pro 2A.

          • DonDrapersAcidTrip

            Personally I’ve never cared about the NRA because they’re actual racists (uh oh R word everyone better plug your ears) but I’m not dumb enough to ever spend one second of my time preaching to gun owners how they’re the antichrist of firearm rights and think I’m ever going to accomplish anything. If you think removing their existence from history would leave you with more gun rights in the present day you’re off in your own little fanatical dream world.

          • Audie Bakerson

            The GCA would never have passed without them. That’s the backbone of all gun control in the US (the NFA is the heart).

          • Ebby123

            You’re right – something much, MUCH worse would have passed decades earlier.

            Extreme hyperbole much?

          • Audie Bakerson

            No, without the NRA an organization that doesn’t sit when gun grabber spin their hand would have their donations instead.

          • jcitizen

            If the NRA is so incompetent, then why are their anti gun opponents so shrill about them? Besides, where are you going to find another 5 million member organization that gives a flip about gun rights at all? You go with what can put a bearing on the enemy in the most effective way. Otherwise your just shooting your self in the foot.

  • hikerguy

    Now the inter-service arm wrestling championship between the Army’s round and the Marine’s round as the official service round can begin (or has that been settled?).

    • My sources tell me it has already begun in earnest. I am currently investigating it.

      • James

        This is very interesting, not only because I want to see the Warfighter armed with the best bullet possible, but because I can’t wait for whatever bullet adopted to filter into the public market in massive numbers.

      • majorrod

        What fouling issues exist with M855A1?

        I’m very skeptical of detractors of M855A1. They’ve already cried wolf three times.

        First it was breaking locking lugs off of belts. (Yep, in an extreme torture test where they fired 3-6K rounds on full auto.) Then it was barrels getting burned out but they “forget” to mention the wear happens after the 10k rounds where barrels are supposed to be replaced anyway.. Then a Marine acquisition officer complained about having to redo ranges because the round has more penetration and ricochets further. Like we have EVER not changed to a more lethal/higher capability round because our ranges were built for weaker rounds.

        Are these fouling allegations coming from the prototype EPR round that used a powder formula without the current powder’s minimizing copper fouling additive?

        Are these alleged fouling issues greater than M855 and if so how many rounds need to be fired before the barrel becomes deadlined?

        • James Kachman

          I agree with you that the M55A1 is probably a great round, however, the M2 Ball was specifically accepted over the M1 Ball because of the need to keep the round usable within Army ranges. They fiddled with the ballistics so a rookie thinking he’s in the field artillery would be less likely to hit a house way the hell out at Pearl.

          • majorrod

            Appreciate your knowledge of almost century old ammo and what on the surface may appear to be the only exception to accepting less capable ammo but there is more to the story that you aren’t sharing.

            First there was not a significant difference in performance on targets inside 1000 yards. M2 ball was lethal well beyond a thousand yards also far beyond the average skill of the typical soldier of the time. So there was no lost lethality/capability. I’ll explain further about capability.

            M1 ball had a much longer range from its development for the WWI machinegun/trench dominated battlefield, They would actually use machineguns in the indirect fire mode (even 1903’s fielded indirect fire capable sights) so the extended range was a necessity. This was never planned or practiced with the M1 Garand. Adopting a round with indirect fire capability as opposed to the old round that was primarily designed for no longer utilized indirect machinegun fire is far different than the case for M855A1 and any competing round on today’s or tomorrow’s battlefield.

            In any case, firing well beyond the range fan is not the same problem as shoot house construction or ricochet control.

            I don’t think we should harken back to a time where Generals from one branch also didn’t want to adopt the M1 Garand over the Springfield because they were incorrectly concerned about reliability or the propensity for ammo to be “wasted” with a semi-auto rifle. This is the same kind of thinking that slowed the adoption of the M4 by other branches. With so many examples someone could make a case for a trend…

          • James Kachman

            You’re right about there being no real performance gap between M1 and M2 Ball, I wasn’t trying to argue the contrary. T’was just pointing out a fun tidbit.

          • majorrod

            That’s what I thought you were doing and appreciate the trivia.

            For some reason M855A1 has suffered an inexplicable amount of unsubstantiated criticism. I didn’t want your tidbit to add to the litany of undeserved complaints that have little to no merit.

          • James Kachman

            Discourse surrounding military design, perhaps for understandable reasons, tend towards conservatism. That’s true for the AR-15/M16 family throughout the entirety of its life, from what I’ve seen. Sadly, until the M855A1 probably has a decade under its belt, it won’t be any different.

          • majorrod

            In theory I agree with you (Bradley, Abrams, Blackhawk, Apache) but the criticism of M855A1 has some peculiarities. It think it stems from a branch specific bias. You didn’t see a slew of made up issues surrounding Mk262 or Mk318 when they were fielded.

    • Ron

      Since the Army is the major procurer for 5.56 , the Army-Marine Corps Board already determine when M855A1s issues with fouling were resolved it would become the standard A for the Marine Corps. Our purchase of Mk318 was an interim step to give more time to fix the problems.

      • majorrod

        Do you have a link as to this announcement?

  • ostiariusalpha

    Something interesting, I just stumbled across an article from the Association of Firearm and Tool Mark Examiners Journal, Volume 31 Number 4, Fall 1999, about Oak Ridge Laboratory’s efforts to develop a green round using tungsten, and what do I see in the picture illustration? An exposed tip, reverse-drawn jacketed, composite bullet. It was a pistol bullet, but even so, the concept was obviously available for the ARL and Alliant Techsystems to draw on well before Liberty’s P.J. Marx tried to peddle his “idea” to some ordnance people.

    • The documentation for the development of M855A1 is pretty good, all things considered. It’s pretty clear it was an ARL development, and not Liberty’s.

      • PK

        For anyone interested, extensive DTIC records on this are available to the public. Keyword to search is “M855A1”, although that only finds anything after the designation was established.

      • Core

        I was under the impression that the M855A1 is literally a copy of Liberty’s design? But I guess the suite was over a patent? So if they used Liberty’s exact design how is this not trademark infringement?

        • Liberty’s press campaign has done a very good job getting people to believe that M855A1 is a copy of their design, but it is not.

          • Core

            Understood.

    • Any chance you could post a picture of that projectile? It sounds really cool.

      • ostiariusalpha

        It looks like some variant of the Glaser Safety Slug, not exactly sure of its construction other than it has a tungsten and tin bonded composition to simulate lead.

        • Very cool. Does it go into any of the design background as to the “why” behind it? Is it supposed to be an AP round, or a heavy weight frangible, or?

          • ostiariusalpha

            A heavy weight frangible was the main goal of the Oak Ridge project; they wanted a non-toxic alternative to lead (nevermind that tungsten is also a heavy metal).

          • CountryBoy

            While both being “heavy metals”, the problem with lead isn’t as much the solid bullet itself, but the particulate matter created during firing and impact that makes it toxic. Tungsten is less likely to “dust” or leach, while lead is implicated in city water systems (Flint, for example) as water has leached lead from the piping.

            Ask your local indoor range about either one, and their ventilation system (and filters) as they’re removing lead dust along with combustion residuals.

    • PK

      “Stumbled across”? AFTE Journal is not something most have laying around. Lucky! I haven’t yet ponied up to purchase all the back issues from prior to subscribing.

    • goldenrule

      Do you have the patent in your hand? You are using a picture to compare? What a fool.

      • ostiariusalpha

        I apologize profusely for my impertinence, the article didn’t mention any patent numbers. Still, if you are interested in a composite bullet with an exposed metal tip and a reverse-drawn jacket you can look over the US1135357 patent; it was awarded on April 13th, 1915.

  • Blake

    & another patent troll bites the dust.

    kudos to the federal court for calling a spade a spade.

  • Government winning suits? This is my surprised face:

  • lowell houser

    It’s rather too bad the Army won. It means civilians won’t be able to buy these any time soon.

    • You weren’t going to be able to buy them from Liberty anyway…

      M855A1 surplus does come up for sale from time to time, but there’s an inventory to be replaced, so the demand within the military is high.

      • Gary Kirk

        And normally what comes up for sale are rounds that failed initial inspection. Same as all military “surplus”.. outside of production over-runs. If this round gets through the ATF B.S. oversight. Then in a few years, we will see it begin to trickle down to us. But doubtful that it will, because they make their own law. And next thing you know, “EPR” will stand for “extreme penetration round”. And also, I have not heard wonderful things about the accuracy of either of these rounds.. But I don’t personally have any experience with either, so can’t attest to that information.

  • goldenrule

    Shouldn’t we be afraid of the bigger picture? You all cannot see the forest through the trees. The government will one day produce all the ammo and then of course what good will our guns be then?

    • Nothing about this lawsuit is stopping Liberty or anyone else from making ammunition.

  • Ebby123

    Good, great for whoever. NOW WHEN CAN WE BUY THE AMMO?!?!

    Seriously.. I am very excited about this round – both the 5.56 and .308 versions.

    • jcitizen

      Me too!!!

  • goldenrule

    Interesting how this blog censors some comments…bias alert.