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; andsaid 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 program, In Search of Lethality: Green Ammo and the M855A1 Enhanced Performance Round.