Connell v. KLN Steel Prods. Co., No. 04 C 194, 2006 WL 2661011 (N.D. Ill. Sept. 13, 2006) (Kendall, J.)

Judge Kendall stayed this patent infringement suit and transferred the case to the Court of Federal Claims, for the Court of Federal Claims to determine whether the Navy consented to defendant’s alleged infringement pursuant to 28 U.S.C. Section 1498(a).  Section 1498 provides that when the use or sale of a patented product is both for the government and with the government’s "authorization and consent," a patent owner’s sole infringement remedy is against the United States in the Court of Federal Claims.

The Court also found that the Navy, for whom the allegedly infringing metal bunk beds had been manufactured, was an indispensable party because the issue at hand was whether the Navy had expressly or impliedly authorized and consented to the infringement.  Because the Court found that it lacked jurisdiction over the Navy for patent infringement claims pursuant to Section 1498, the Court stayed the case and transferred it to the Court of Federal Claims.  The Court also noted that the Court of Federal Claims could either keep the case or remand it in whole or in part, after ruling upon the Section 1498 defense.