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CAMPBELL PLASTICS ENGINEERING & MFG. v.

BROWNLEE 1243
Cite as 389 F.3d 1243 (Fed. Cir. 2004)

was disclosed to contractor personnel re-


CAMPBELL PLASTICS ENGINEER- sponsible for patent matters, entitling gov-
ING & MFG., INC., Appellant, ernment to take title to the invention un-
der the FAR. 35 U.S.C.A. § 200; 48
v.
C.F.R. § 52.227–11(c)(1), (d).
Les BROWNLEE, Acting Secretary
of the Army, Appellee. 2. United States O70(10)
In deciding whether Administrative
No. 03–1512. Contracting Officer (ACO) abused his dis-
United States Court of Appeals, cretion in demanding title to invention de-
Federal Circuit. veloped pursuant to contract with Army,
the Armed Services Board of Contract Ap-
Nov. 10, 2004. peals properly considered (1) evidence of
Background: Contractor appealed deci- whether the ACO acted with subjective
sion by the Armed Services Board of Con- bad faith; (2) whether the ACO had a
tract Appeals upholding an Administrative reasonable, contract-related basis for his
Contracting Officer’s (ACO) demand for decision; (3) the amount of discretion giv-
title to an invention developed pursuant to en to the ACO; and (4) whether the ACO
a contract with the Army. violated a statute or regulation. 48 C.F.R.
§ 52.227–11(d).
Holding: The Court of Appeals, Cleven-
ger, Circuit Judge, addressing an issue of 3. United States O70(10)
first impression, held that contractor’s Federal Acquisition Regulation (FAR)
piecemeal submissions of progress reports allowing the government to take title to
and drawings disclosing features of inven- any invention developed pursuant to a gov-
tion developed pursuant to its contract did ernment contract that was not properly
not satisfy requirement of Federal Acqui- disclosed by the contractor vests discretion
sition Regulation (FAR) incorporated into in the government in determining whether
contract that required inventions to be dis- to invoke forfeiture when an invention has
closed in a single, written report within not been correctly disclosed to it. 48
two months after invention was disclosed C.F.R. § 52.227–11(d).
to contractor personnel for patent matters, 4. United States O70(10)
entitling government to take title to the Harm to the government was not re-
invention under the FAR. quired in order for Administrative Con-
Affirmed. tracting Officer (ACO) to act within his
discretion by insisting on forfeiture of in-
vention developed pursuant to contract
1. United States O70(6.1)
with Army due to contractor’s failure to
Contractor’s piecemeal submissions of disclose the invention as required by the
progress reports and drawings disclosing contract. 48 C.F.R. § 52.227–11(d).
features of invention developed pursuant
to its contract with the Army under pro- Patents O328(2)
gram for small disadvantaged business 5,895,537. Cited.
concerns did not satisfy requirement of
Federal Acquisition Regulation (FAR) in-
corporated into contract that required in-
ventions to be disclosed in a single, written Kyriacos Tsircou, Sheppard, Mullin,
report within two months after invention Richter & Hampton LLP, of Los Angeles,
1244 389 FEDERAL REPORTER, 3d SERIES

California, argued for appellant. With him (1988). See 13 C.F.R. § 124.1–.610 (1992)
on the brief was Gary A. Clark. (implementing section 8(a) programs).
Domenique Kirchner, Trial Attorney, Section I of the contract incorporates
Commercial Litigation Branch, Civil Divi- numerous clauses from the Federal Acqui-
sion, United States Department of Justice, sition Regulations (‘‘FARs’’), including a
of Washington, DC, argued for appellee. ‘‘Patent Rights—Retention by the Con-
With her on the brief were Peter D. Keis- tractor’’ clause from 48 C.F.R. § 52.227–11
ler, Assistant Attorney General; David M. (1991) (‘‘FAR 52.227–11’’) that requires a
Cohen, Director; and Todd M. Hughes, contractor to disclose any subject invention
Assistant Director. Of counsel on the developed pursuant to a government con-
brief was Craig S. Clarke, U.S. Army Le- tract and sets forth certain substantive
gal Services Agency, of Arlington, Virgi- requirements for doing so. The clause
nia. further provides that the government may
obtain title if the contractor fails to dis-
Before MICHEL, CLEVENGER, and close the invention within two months from
DYK, Circuit Judges. the date upon which the inventor discloses
it in writing to contractor personnel re-
CLEVENGER, Circuit Judge. sponsible for patent matters. Section I
also incorporates from 48 C.F.R.
Campbell Plastics Engineering & Mfg.,
§ 252.227–7039 (1991) (‘‘FAR 252.227–
Inc. (‘‘Campbell Plastics’’) appeals the de-
7039’’) a ‘‘Patents—Reporting of Subject
cision by the Armed Services Board of
Inventions’’ clause which requires the con-
Contract Appeals (‘‘ASBCA’’ or ‘‘Board’’)
tractor to disclose subject inventions in
upholding an Administrative Contracting
interim reports furnished every twelve
Officer’s (‘‘ACO’s’’) demand for title to an
months and final reports furnished within
invention developed pursuant to a contract
three months after completion of the con-
between Campbell Plastics and the U.S.
tracted work. Subsection H.11 of the con-
Army Chemical Research, Development
tract, titled ‘‘Patent Rights Reports,’’ re-
and Engineering Center (‘‘Army’’ or ‘‘gov-
quires the contractor to submit all ‘‘interim
ernment’’). See In re Campbell Plastics
and final invention reports required by
Eng’g & Mfg. Inc., ASBCA No. 53319,
patent clause in Section I’’ on a ‘‘DD Form
2003 WL 1518313 (Mar. 18, 2003). Be-
882, Report of Inventions and Subcon-
cause we conclude that Campbell Plastics
tracts.’’
failed to comply with the invention disclo-
sure provisions of the contract, we affirm. On October 11, 1992, Mr. Richard
Campbell, President of Campbell Plastics,
submitted to the Army a DD Form 882
I
wherein he expressly stated ‘‘no inven-
On September 25, 1992, Campbell Plas- tions.’’ At a post-award conference on No-
tics (named Venture Plastics, Inc., at the vember 17, an Army representative told
time) entered into a cost-plus-fixed-fee Mr. Campbell that a DD form 882 was due
contract, DAAA15–92–C–0082, with the at least once every twelve months from the
Army to develop certain components of an date upon which the contract was awarded.
aircrew protective mask, as part of a pro- Shortly thereafter, on December 14, Mr.
gram for small disadvantaged business Campbell faxed several handwritten draw-
concerns pursuant to section 8(a) of the ings to Mr. Jeff Hofmann, an ACO Repre-
Small Business Act, 15 U.S.C. § 637(a) sentative. One of the drawings identified
CAMPBELL PLASTICS ENGINEERING & MFG. v. BROWNLEE 1245
Cite as 389 F.3d 1243 (Fed. Cir. 2004)

a location for a ‘‘sonic weld or snap fit.’’ and stated specifically that the assembly
Mr. Campbell’s submission was the first in was sonic welded. On July 21 and August
a series of progress reports and drawings 5, Mr. Campbell submitted cost estimates
submitted during Campbell Plastics’s work and noted in each that the concept of sonic
under the contract that referenced sonic welding was ‘‘nearly complete.’’
welding to varying degrees. On October 6, 1993, Mr. Joseph J. Steh-
On December 19, 1992, Mr. Campbell lik, ACO, wrote to Mr. Campbell to remind
faxed a handwritten letter to Mr. Hofmann him that an Interim Report of Inventions
seeking to ‘‘reopen the question of the and Subcontracts, preferably on a DD
sonic welding.’’ The letter included an Form 882, must be delivered at least every
explanation of the advantages of sonic twelve months from the date of the con-
welding and the assembly concept. On tract, listing the subject inventions during
January 20, 1993, Mr. Campbell provided the period and also certifying that the
Mr. Hofmann with two protective masks required procedures for identifying and
that had sonic-welded side ports. In a disclosing subject inventions have been
January 27 monthly progress report, disclosed. In the letter, Mr. Stehlik re-
Campbell Plastics noted, ‘‘We are also quested that Campbell Plastics submit an
testing Sonic Welding the Kapton Film in interim report within ten days. On Octo-
a housing. This also has to be tested for ber 18, Mr. Campbell submitted a DD
leakage and tension.’’ On February 11, Form 882 but did not disclose an invention.
Mr. Campbell faxed Mr. Hofmann a draw- In a monthly progress report dated
ing of a side port having a sonic weld. In June 6, 1994, Campbell Plastics stated,
a monthly progress report submitted on ‘‘Eyelens Retaining System, Branson satis-
March 2, Campbell Plastics identified the fied with Sonic Weld Concept—best under
task of ‘‘[t]esting of Sonic Welding the design restrictions.’’ On September 15,
Kapton film in a housing,’’ and reported Mr. Campbell submitted a DD Form 882
that sonic welding ‘‘looks viable.’’ Camp- that again indicated that no invention had
bell Plastics further reported that a ‘‘pro- been developed under the contract.
totype mold is currently being fabricated Campbell Plastics did not submit another
to prove out the feasibility of sonic welding DD Form 882 for the remainder of the
the Kapton Film and maintaining tension.’’ contract period, and it received no further
On March 19, 1993, Mr. Campbell faxed request from the Army to do so. In
Mr. Hofmann a sketch of the side port monthly progress reports dated October 7
and November 8, Campbell Plastics re-
voicemitter and the following note: ‘‘I am
ported continued work on the sonic weld-
having this sketched up and a simple mold
ing process.
made to test Sonic Weld/Kapton Concept.’’
On March 22 and 24, Mr. Campbell faxed On February 7 and November 24, 1995,
various diagrams of the lens retaining sys- Mr. Campbell faxed Mr. Hofmann draw-
tem and the front voicemitter housing and ings that identified changes in the dimen-
speaking unit, and indicated that certain sions of the eyelens retaining system to
joints were to be sonic welded. In month- facilitate sonic welding.
ly progress reports dated April 29 and In June 1997, the Army published a
June 30, Campbell Plastics reported on its report titled, ‘‘Design of the XM45 Chemi-
testing of the use of sonic welding. On cal–Biological, Aircrew, Protective Mask.’’
July 8, Mr. Campbell faxed drawings of The report disclosed research conducted
the lens retaining system to Mr. Hoffman by the Army from October 1991 through
1246 389 FEDERAL REPORTER, 3d SERIES

July 1995, and referenced sonic welded admittedly had an enabling disclosure of
components in the mask. the subject invention by June 1997.
In August 1997, Campbell Plastics con- Campbell Plastics furthermore argued that
tacted an attorney who soon after drafted forfeiture is not favored by law, especially
a patent application for a ‘‘Sonic Welded where the government suffered no genuine
Gas Mask and Process.’’ Campbell Plas- harm. In short, Campbell Plastics framed
tics filed the application on October 9, its failure to comply with the contract as
1997. The U.S. Patent and Trademark one in form only, which should not result
Office (‘‘USPTO’’) made the application in the forfeiture of title to the subject
available to the Army for the limited pur- invention.
pose of making a secrecy determination
pursuant to 35 U.S.C. § 181 (1994). Pur- In denying the appeal, the Board ruled
suant to the USPTO’s request, the Army that Campbell Plastics failed to satisfy its
reviewed Campbell Plastics’s application contractual obligation to inform the Army
by January 30, 1998. that it considered sonic welding to be an
invention. The Board further ruled that
The patent application issued on April
any information the Army gleaned from its
20, 1999, as U.S. Patent No. 5,895,537
(‘‘the ’537 patent’’). The ’537 patent ex- review of the patent application for secrecy
pressly reserved for the government a determination purposes and its own June
paid-up license and ‘‘the right in limited 1997 report was not provided by Campbell
circumstances to require the patent owner Plastics, and that forfeiture was appropri-
to license others on reasonable terms as ate under the circumstances. Finally, the
provided for by the terms of Contract No. Board recognized that FAR 52.227–11(d),
DAAA15–92–C–0082 awarded by The which specifies when the government
Army.’’ On April 28, Campbell Plastics no- ‘‘may’’ obtain title to a subject invention,
tified the Army in writing of the ’537 pat- vests the Army with some discretion in
ent. determining whether to take title. The
After an exchange of letters between the Board found, however, that the Army had
parties regarding the Army’s claim to joint not abused its discretion. Campbell Plas-
ownership of the subject invention, includ- tics now appeals the Board’s decision. We
ing one in which the Army admitted that it have jurisdiction pursuant to 28 U.S.C.
had, by June 1997, a report drafted by § 1295(a)(10) (2000).
government employees that provided an
enabling disclosure of the invention, the II
ACO ultimately concluded that Campbell
Plastics forfeited title to the patent by The Contract Disputes Act (‘‘CDA’’), 41
failing to comply with FAR 52.227–11. U.S.C. § 609(b) (2000), governs this court’s
On March 14, 2001, Campbell Plastics review of Board decisions. While the
appealed the ACO’s decision. Both parties CDA provides for nondeferential review of
filed cross-motions for summary judgment. the Board’s legal conclusions, it specifies
Though Campbell Plastics conceded in its that the Board’s factual findings shall be
motion that its disclosure was not in the final and conclusive unless they are ‘‘fraud-
form of a DD Form 882 as was required ulent, or arbitrary, or capricious, or so
by the contract, Campbell Plastics argued grossly erroneous as to necessarily imply
that it disclosed all technical aspects of the bad faith, or if such decision is not sup-
invention to the Army and that the Army ported by substantial evidence.’’ Id.
CAMPBELL PLASTICS ENGINEERING & MFG. v. BROWNLEE 1247
Cite as 389 F.3d 1243 (Fed. Cir. 2004)

III bar date, id. § 202(c)(3). The disclosure


Because we have never before defined a provisions of section 202(c)(1) thus provide
contractor’s obligation to disclose a ‘‘sub- the government adequate means with
ject invention’’ under FAR 52.227–11, this which to protect these rights.
case presents a matter of first impression Subsection 1.53 of Campbell Plastics’s
for this court. contract incorporated the clause ‘‘Patent
In 1980, Congress passed the Bayh–Dole Rights—Retention by the Contractor’’ of
Act, 35 U.S.C. §§ 200–212, the statutory FAR 52.227–11, which obligates the con-
scheme from which FAR 52.227–11 arises. tractor to disclose ‘‘subject inventions’’ to
With few exceptions, the Act allows non- the government and sets forth both sub-
profit organizations and small business stantive and formal requirements for the
firms to elect to retain title to any inven- disclosure. The clause states in relevant
tion by the contractor developed pursuant part:
to a government contract. For purposes (c) Invention disclosure, election of ti-
of the Act, Congress has termed these tle, and filing of patent application by
inventions ‘‘subject inventions.’’ See 35 contractor.
U.S.C. § 201(d)-(e) (1988) (defining an ‘‘in- (1) The Contractor will disclose
vention’’ to mean ‘‘any invention or discov- each subject invention to the Federal
ery that is or may be patentable,’’ and agency within 2 months after the in-
‘‘subject invention’’ to mean ‘‘any invention ventor discloses it in writing to Con-
of the contractor conceived or first actually tractor personnel responsible for pat-
reduced to practice in the performance of ent matters. The disclosure to the
work under a funding agreement’’). agency shall be in the form of a writ-
Congress required that each govern- ten report and shall identify the con-
ment contract entered into pursuant to the tract under which the invention was
Act shall contain provisions that require made and the inventor(s). It shall be
the contractor to ‘‘disclose each subject sufficiently complete in technical de-
invention to the Federal agency within a tail to convey a clear understanding to
reasonable time after it becomes known to the extent known at the time of the
contractor personnel responsible for the disclosure, of the nature, purpose, op-
administration of patent matters, and that eration, and the physical, chemical, bi-
the Federal Government may receive title ological or electrical characteristics of
to any subject invention not disclosed to it the inventionTTTT
within such time.’’ 35 U.S.C. § 202(c)(1) (d) Conditions when the government
(1988). The reasons for this are clear. may obtain title. The Contractor will
Though the Act provides nonprofit organi- convey to the Federal agency, upon
zations and small business firms the right written request, title to any subject in-
to elect title to a subject invention, it also vention—
vests in the government the right to a
(1) If the Contractor fails to dis-
paid-up license to practice the invention
close or elect title to the subject in-
when the contractor elects to retain title,
vention within the times specified in
id. § 202(c)(4), and the right to receive
paragraph (c) of this clause TTTT
title to the invention in the United States
or any other country in which the contrac- FAR 52.227–11.
tor has not filed a patent application on the Subsection H.11 of Campbell Plastics’s
invention prior to any pertinent statutory contract, titled ‘‘Patent Rights Reports,’’
1248 389 FEDERAL REPORTER, 3d SERIES

requires the contractor to submit all inter- United States industry and labor,’’ and ‘‘to
im and final invention reports ‘‘required by encourage maximum participation of small
patent clause in Section I’’ on a DD Form business firms in federally supported re-
882, ‘‘Report of Inventions and Subcon- search and development efforts,’’ 35 U.S.C.
tracts,’’ and Campbell Plastics does not § 200 (2000), it also provided the govern-
dispute that the DD Form 882 is the con- ment with certain aforementioned rights to
tractual means for disclosing subject in- the inventions and sought to ensure the
ventions pursuant to FAR 52.227–11(c)(1).1 safeguard of those rights by requiring gov-
In addition to the disclosure requirements ernment contractors to disclose subject in-
of FAR 52.227–11(c)(1), the form also re- ventions. See 35 U.S.C. § 202 (stating
quires a contractor to report the title of that each contract shall ensure that ‘‘the
the invention, whether it elects to file a contractor disclose each subject invention
patent application in either the United to the Federal agency within a reasonable
States or a foreign country, and any for- time after it becomes known to contractor
eign country so elected. personnel responsible for the administra-
The language of the Patent Rights Re- tion of patent matters, and that the Feder-
ports clause and the incorporated FARs is al Government may receive title to any
clear and unambiguous. It affords the subject invention not disclosed to it within
government the opportunity to take title to such time’’); id. § 200 (listing the protec-
any invention by the contractor that is or tion of the government’s rights in federally
may be patentable and was conceived or supported inventions as a policy objective).
first actually reduced to practice in the A single, written report containing the in-
performance of work under the contract if formation required by FAR 52.227–11(c)(1)
the contractor fails to disclose on a DD effectively provides such a safeguard.
Form 882 the technical aspects of the in- [1] Neither party disputes that Camp-
vention, the inventor and the contract un- bell Plastics first disclosed the method for
der which the invention was developed, fabricating a sonic welded gas mask to its
within two months of disclosing the inven- patent counsel in August 1997, or that the
tion to contractor personnel responsible method was indeed a ‘‘subject invention.’’
for patent matters. At a minimum, then, the contract required
This plain-meaning interpretation of the Campbell Plastics to disclose on a DD
contract is buttressed by the policy consid- Form 882 by October 1997, the technical
erations behind the Bayh–Dole Act. While aspects of its method for fabricating a
Congress clearly intended ‘‘to promote the sonic welded gas mask, the inventor and
commercialization and public availability of the contract under which the invention was
inventions made in the United States by developed.2 Campbell Plastics admittedly

1. How a contractor would disclose on a DD particular manner of disclosure proposed by


Form 882 the technical aspects of an inven- the Army, we need not concern ourselves with
tion in the detail required by FAR 52.227– the question. Campbell Plastics admits that
11(c)(1) is not clear. The questions on the ‘‘[p]aragraph H.11 of the Contract TTT re-
form are not directed towards eliciting a dis- quires the written report [of FAR 52.227–
closure of technical information, and the form 11(c)(1) ] to be submitted on DD Form 882.’’
itself certainly provides no extra space for It did not do so.
such a disclosure. In its brief, the Army
states that ‘‘[a] written report describing the 2. Despite the requirement of FAR 252.227–
technical features of the invention must also 7039 that it submit an interim report every
be provided with the DD 882.’’ Though we twelve months, Campbell Plastics last submit-
find no support in the contract itself for the ted a DD Form 882 to the Army on Septem-
CAMPBELL PLASTICS ENGINEERING & MFG. v. BROWNLEE 1249
Cite as 389 F.3d 1243 (Fed. Cir. 2004)

did not do so, and instead indicated ‘‘no of that subsection are unavailing. Camp-
invention’’ and ‘‘none’’ on DD Form 882s bell Plastics argues that the subsection
that it did submit. refers only to the timing of the disclosure,
Campbell Plastics contends, however, and not to the substance of the disclosure
that it continually disclosed all features of itself. Under Campbell Plastics’s inter-
the invention throughout the contractual pretation, however, it could disclose any-
thing under the sun in any form whatsoev-
period. While it is at least debatable
er and still avoid forfeiture, so long as it
whether the various progress reports and
does so within two months of disclosing the
drawings Campbell Plastics submitted to
subject invention to its personnel responsi-
the Army together convey a clear under-
ble for patent matters.
standing of the nature, purpose and oper-
ation of the invention as well as the in- Campbell Plastics also argues that the
vention’s physical, chemical, biological or government’s possession of an enabling
electrical characteristics, we think the disclosure of the subject invention by June
contract requirement of a single, easily 1997, and its review of the patent applica-
identified form on which to disclose inven- tion for secrecy determination purposes,
satisfied Campbell Plastics’s obligations
tions is sound and needs to be strictly
under the contract. But whatever infor-
enforced. If we were to find Campbell
mation the government had regarding the
Plastics’s style of disclosure sufficient,
invention, it did not get it from Campbell
methods of disclosure could vary widely
Plastics in the form of a proper invention
from case to case. The government nev-
disclosure.
er would be sure of which piece of paper,
or which oral statement, might be part of Finally, Campbell Plastics makes much
an overall invention disclosure. But we of the fact that ‘‘forfeiture’’ is disfavored at
do not so find. The contract instead de- common law. The language of the con-
mands a single form for disclosure, which tract is very clear, as is the statutory
authority behind FAR 52.227–11, which al-
enables the contracting officials to direct
lows the government to take title to any
the inventive aspects of the contract per-
invention not properly disclosed. The
formance to the correct personnel in the
Board was correct in holding that Camp-
agency for a determination of whether the
bell Plastics afforded the government the
government has an interest in the dis-
opportunity to take title to its patent be-
closed invention, and for the government
cause Campbell Plastics failed to disclose
to determine how best to protect its inter-
the invention in the manner specified in
est. Sound policy is promoted by the
the contract. Campbell Plastics cannot
rule of strict compliance with the method
use the proposition that forfeiture is a
of disclosure demanded by the contract. disfavored remedy as an absolute shield to
Because Campbell Plastics’s piecemeal thwart the government’s right to enforce
submissions do not adequately disclose the the terms of the contract Campbell Plas-
subject invention under the parties’ con- tics willingly signed.
tract, the government may take title to the
invention pursuant to FAR 52.227–11(d). IV
The arguments Campbell Plastics ad- The Board determined that because
vances in an attempt to avoid application FAR 52.227–11(d) specifies when the gov-

ber 15, 1994. After that date, the Army never waived the DD Form 882 requirement, how-
formally requested another DD Form 882. ever, because Campbell Plastics did not raise
We need not consider whether the Army this issue before the Board.
1250 389 FEDERAL REPORTER, 3d SERIES

ernment ‘‘may’’ obtain title to a subject tification requirements, inter alia, by put-
invention, the decision to demand title is a ting the patent rights of the United States
discretionary matter. Although the Board in foreign countries in jeopardy.
did not understand Campbell Plastics to
[3, 4] We agree with the Board that
have specifically raised the issue of wheth-
FAR 52.227–11(d) vests discretion in the
er the ACO’s decision to demand title to
government in determining whether to in-
the patent in this case is within the bounds
voke forfeiture when an invention has not
of discretion, the Board nonetheless ad-
been correctly disclosed to it. We also
dressed and decided the issue. We sur-
agree that the test for abuse of discretion
mise that the Board took this step because
set forth in McDonnell Douglas is the test
while Campbell Plastics did not phrase its
to be applied in this case. We hold that
contention in the language of abuse of
harm to the government is not a require-
discretion, it clearly argued that when the
ment in order for the ACO to insist on
government obtains a license to the patent
forfeiture and remain within the bounds of
and is not otherwise harmed, the penalty
sound discretion. Campbell Plastics
of forfeiture of title is unwarranted.
points to nothing in its contract with the
[2] In deciding the abuse of discretion Army, or in the relevant statute or its
issue, the Board properly considered (1) legislative history, that requires the gov-
evidence of whether the government offi- ernment to show harm to itself in order to
cial acted with subjective bad faith; (2) invoke the remedy of forfeiture when it is,
whether the official had a reasonable, con- as is the case here, otherwise warranted.
tract-related basis for his decision; (3) the Because the Board correctly applied the
amount of discretion given to the official; proper test in deciding that no abuse of
and (4) whether the official violated a stat- discretion was committed by the ACO in
ute or regulation. See McDonnell Doug- demanding title to Campbell Plastics’s pat-
las Corp. v. United States, 182 F.3d 1319, ent, we reject Campbell Plastics’s argu-
1326 (Fed.Cir.1999) (citing United States ment that an abuse of discretion occurred
Fid. & Guar. Co. v. United States, 230 here.
Ct.Cl. 355, 676 F.2d 622, 630 (1982)). Rul-
ing in favor of the government on each V
point, the Board concluded that the ACO
Campbell Plastics failed to comply with
did not abuse his discretion in demanding
the disclosure provisions of the parties’
title to the subject invention and necessari-
contract. The contract unambiguously
ly rejected Campbell Plastics’s argument
provides that in such a case, the govern-
that when the government takes a license
ment may obtain title to the subject inven-
in the invention and is otherwise not
tion. The decision of the Board to deny
harmed, the government cannot cause for-
Campbell Plastics’s appeal is affirmed.
feiture of the patent.
On appeal, Campbell Plastics sharpens COSTS
the argument made to the Board, arguing
No costs.
directly that the ACO abused his discre-
tion by demanding title in circumstances AFFIRMED
where the government allegedly has suf-
fered no harm. The government responds
that indeed it has suffered harm from ,
Campbell Plastics’s failure to meet the no-