Intellectual Property News and Reports

The United States appeals from a decision of the United States Court of Federal Claims (“Claims Court”) awarding attorneys’ fees and costs to Hitkansut LLC and Acceledyne Technologies, Ltd., LLC (collectively, “Hitkansut”) under 28 U.S.C. § 1498(a). Section 1498(a) provides for the award of attorneys’ fees when certain conditions are met, unless “the court finds that the position of the United States was substantially justified.” We agree with the United States that “the position of the United States” as used in this statutory provision refers to positions taken by the United States during litigation and does not encompass pre-litigation conduct by government actors. The Claims Court erred to the extent it interpreted “the position of the United States” to include pre-litigation conduct. However, because the examples of conduct cited by the Claims Court demonstrate that the position of the United States was not substantially justified even under this narrower definition, we affirm the award of fees.

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