Federal Circuit considers Fifth Amendment in patent infringement caseApril 3, 2006

The Takings Clause of the Fifth Amendment, combined with the Tucker Act, provides an independent basis for seeking compensation when a patent infringement claim arises in a foreign country. The United States appealed the order of the Court of Federal Claims holding that it could assert jurisdiction over Zoltek’s patent infringement allegations by treating the action as a Fifth Amendment taking under the Tucker Act.Zoltek is the assignee of the U.S. Reissue Patent No. 34, 162 (‘the Re ‘162 patent’) which claims certain methods of manufacturing carbon fiber sheets with controlled surface electrical resistivity. The U.S. contracted with Lockheed Martin Corporation (‘Lockheed’) to design and build the F-22 fighter. Lockheed subcontracted for two types of silicide fiber products that it uses in the aircraft. The first fiber product was manufactured in Japan and then imported into the U.S. The second fiber product was manufactured exclusively in Japan, but processed into mats in the U.S.Zoltek brought suit in the Court of Federal Claims under

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