Opinions — Wednesday, February 4, 2026

The Federal Circuit issued a sua sponte order recalling its mandate in Lashify, Inc. v. International Trade Commission to correct a misstatement of the standard of review for the Commission's factual findings underlying claim construction. The court had incorrectly stated that it reviews those findings for clear error under Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., when the proper standard is substantial evidence under Kyocera Senco Industrial Tools Inc. v. International Trade Commission. The court emphasized that the correction did not change the case-specific analysis or result.

The order highlights the distinct standard of review applicable to ITC factual findings, which are reviewed for substantial evidence rather than clear error—the standard that applies to district court factual findings under Teva. This correction underscores the difference in appellate review standards between Article III courts and administrative agencies, even when both involve the same underlying legal question of claim construction. The court's statement that the error was immaterial to the outcome suggests the evidentiary record in this case satisfied both the substantial evidence and clear error standards.

The Federal Circuit affirmed summary judgment for defendant AeroVironment on a § 1498 immunity defense in a patent infringement suit brought by Paul and David Arlton concerning U.S. Patent No. 8,042,763, directed to a rotary wing UAV. The central question was whether AeroVironment's work on the "Ingenuity" Mars helicopter (and its terrestrial analog "Terry") constituted use "by or for the United States" with governmental authorization and consent, thereby shielding AeroVironment from liability in district court and confining plaintiffs to a Tucker Act remedy in the Court of Federal Claims. The Arltons argued that § 1498 immunity was unavailable because 15 U.S.C. § 638 obligated the government to award SBIR Phase III contracts to their company, Lite Machines, which had developed the technology in earlier phases, and that AeroVironment's demonstrations of Terry for marketing purposes fell outside the statute's scope.

The court found no tension between § 638 (governing contract awards among private entities) and § 1498 (governing who must be sued and where for government-authorized infringement), rejecting the argument that SBIR obligations constrain the government's ability to consent under § 1498. The proper vehicle for challenging an allegedly improper contract award would be a procurement protest by Lite Machines in the Court of Federal Claims, not a patent infringement action by the Arltons in district court. On the Terry demonstrations, the court held that viewing the evidence favorably to plaintiffs, AeroVironment's public displays at conferences, to investors, and on 60 Minutes were non-commercial uses within § 1498 immunity where the defendant received no commercial profit, did not offer Terry for sale, and used it "solely for purposes of display" related to government work, consistent with the principle articulated in TVI Energy Corp. v. Blane.