Free Motion to Notify Interested Party - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JENNINGS TRANSMISSION SERVICE OF GOLDSBORO, INC., Plaintiff, v. THE UNITED STATES, Defendant. MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR NOTICE TO THIRD-PARTIES PURSUANT TO RCFC 14 Plaintiff alleges that the United States ("the Government"), through the actions of the United States Postal Service (USPS), has, without authorization, used and installed transmission replacement kits that allegedly infringe claims of United States Patent No. 6,085,609 (the `609 patent). See Comp. ¶¶ 1, 9. Specifically, plaintiff alleges that the USPS's purchase, use and installation of kits for the conversion of a left-hand transmission for use in right-hand drive Grumman Long Life Vehicles infringes claims of the `609 patent. See Comp. ¶¶ 7-9. The suppliers of transmission conversion kits include Jasper Engines & Transmissions (Jasper) and Ready Built Distributors, Inc. (Ready Built). Jasper and Ready Built may have an interest in the outcome of this lawsuit. Each of these companies may be requested to indemnify the -1No. 05-1209 C Judge Lawrence M. Baskir

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Government for patent infringement based upon the inclusion of a patent indemnity provision in their respective National Ordering Agreements (NOAs) with the USPS. At least some of the sales of transmission conversion kits to the USPS were made under these NOAs, which are Contract Nos. 412735-00-H-0627 (Jasper's NOA, excerpts of which are attached hereto as Exhibit A) and 412735-00-H-1111 (Ready Built's NOA, excerpts of which are attached hereto as Exhibit B). Both contracts issued with USPS Purchasing Manual Clause 4-2 Contract Terms and Conditions - Commercial Items (January 1997). That clause contains a patent indemnity provision, which states: h. Patent indemnity. The supplier shall indemnify the Postal Service and its officers, employees and agents against liability, including costs for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, or copyright, arising out of the performance of this contract, provided the supplier is reasonably notified of such claims and proceedings.

Exh. A at 4; Exh. B at 4. Based on these contractual terms, Jasper and Ready Built have an apparent interest in this litigation within the meaning of RCFC 14, because a judgment against the Government might affect them as potential indemnitors. Likewise, the notices requested in this motion will fulfill any

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obligation that the Government might have to provide notice to Jasper and Ready Built. In particular, the requested notice will provide early formal notice of this action and afford Jasper and Ready Built an opportunity to appear and assert any interest that they may have in this action. For the reasons stated above, defendant respectfully requests that Defendant's Motion for Notice to Third-Parties Pursuant to RCFC 14 be granted and the requested notices be issued. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JOHN FARGO Director

March 17, 2006

OF COUNSEL: GARY L. HAUSKEN Assistant Director Department of Justice

s/ Ken B. Barrett KEN B. BARRETT Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Telephone: (202) 307-0343 Facsimile: (202) 307-0345 E-mail: [email protected] Attorneys for the United States

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Exhibit A

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Exhibit B

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