In the United States Court of Federal Claims 

No. 11-377C 

(Filed: July 31, 2014) 

RALPH J. LAMSON, 

 

 Plaintiff, 

v. 

THE UNITED STATES, 

 Defendant. 

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28 U.S.C. § 1498(a); 35 U.S.C. § 

287(c) – Medical Immunity Provision; 

Defense to Liability 

 

Bruce Burdick, Alton, IL, for plaintiff. 

Gary Hausken, United States Department of Justice, Civil Division, Washington, 

DC, with whom were John Fargo, Director, and Stuart F. Delery, Assistant Attorney 

General, for defendant. 

O P I N I O N 

Firestone, Judge. 

 Pending before the court is the United States’ (“the government”) motion for 

summary judgment under Rule 56 of the Rules of the United States Court of Federal 

Claims (“RCFC”) in this action brought by plaintiff Dr. Ralph J. Lamson (“Dr. Lamson”) 

under 28 U.S.C. § 1498(a). This is a case of first impression in which the court must 

determine whether the medical immunity provision of 35 U.S.C. § 287(c) applies to the 

United States. Dr. Lamson alleges that the United States is liable under § 1498(a) for 
 2 

unauthorized use of his patent both directly and through procurement contracts. Dr. 

Lamson’s patent, U.S. Patent No. 6,425,764 (“the ‘764 patent”), covers several methods 

for using Virtual Reality Immersion Therapy (“VRIT”) to treat psychological, 

psychiatric, and medical conditions, including post-traumatic stress disorders in military 

personnel. Dr. Lamson alleges that the United States has practiced one or more of these 

methods without a valid license. 1

 The government has moved for summary judgment, arguing that because the 

activities allegedly giving rise to his § 1498(a) claim occurred during medical treatment 

by or under the direction of licensed medical practitioners at medical treatment facilities 

operated by the United States, the government has a complete defense to liability under 

35 U.S.C. § 287(c). By its terms, § 287(c) protects medical practitioners and those 

practicing under their supervision—as well as any related health entity—from liability for 

infringement in connection with the performance of a “medical activity” covered by the 

patent. The government argues that it can avail itself of the defense to liability 

established in § 287(c) in an action brought against the United States under § 1498(a). 

According to the government, this defense covers plaintiff’s claims regarding the use of 

VRIT methods to treat identified psychological, psychiatric, or medical conditions, as 

well as preventative treatments such as habituating or desensitizing soldiers prior to 

 

1

 On October 27, 2011, the court ordered the dismissal of Count 2 of plaintiff’s complaint, which 

alleged a Fifth Amendment takings of the ‘764 patent, on the grounds that such a takings claim 

was barred for lack of jurisdiction. Lamson v. United States, 101 Fed. Cl. 280, 282 (2011). In 

this motion, the government seeks judgment on Count 1, which alleges an unauthorized use of 

his patent under § 1498(a), the sole remaining count of the complaint. 
 3 

deployment as a preventative measure to the extent that desensitizing or habituating 

soldiers is considered medical treatment. In the alternative, the government argues that 

these preventative techniques, as well as other non-treatment-related uses of VRIT, are 

outside the scope of the ‘764 patent and thus are not covered by the patent. 

 Plaintiff does not challenge the government’s contention that the unauthorized 

uses alleged in the complaint, if true, would fall within the factual predicate covered by § 

287(c). Rather, plaintiff contends that summary judgment must be denied because § 

287(c) does not apply to suits against the United States under § 1498(a). Plaintiff argues 

that § 287(c) by its express terms applies only as a defense against infringement under 

Title 35. Because the United States is not subject to suit for patent infringement under 

Title 35, but instead is liable only under § 1498(a) for unauthorized use, plaintiff argues 

that the United States cannot avail itself of the defense and therefore may be held liable 

for medical uses of patented methods. The plaintiff also argues that the government’s use 

of VRIT techniques to desensitize or habituate soldiers falls within the “treatment” 

methods as set forth in the ‘764 patent and thus is also covered by the patent.2

 

 For the reasons discussed below, the court holds that the defense provided for in § 

287(c) is available to the United States in actions brought under § 1498(a). As a result, 

the government is entitled to summary judgment on plaintiff’s claims for unauthorized 

 

2

 The parties’ arguments regarding use of the patent method for non-treatment uses, such as 

habituating and desensitizing soldiers, developing combat simulators, and other uses, has 

evolved over the course of briefing. At this stage, the government contends that these uses are 

outside the scope of the patent, and plaintiff claims that the uses all involve “treatment” and are 

therefore covered by the patent. Earlier arguments regarding whether “research” into the use of 

VRIT by the government involved “use” of the patent have been abandoned by the parties. 
 4 

use of the ‘764 patent in connection with “medical treatment” at various government and 

medical facilities. The Federal Circuit has made it clear that the United States may avail 

itself of all defenses available to private parties in infringement litigation when the 

United States is defending actions under § 1498(a), and it is equally clear that § 287(c) is 

such a defense. In addition, the government is entitled to summary judgment with regard 

to plaintiff’s allegation of unauthorized use in connection with use of VRIT outside of 

medical treatment of human patients. The court agrees with the government that the ‘764 

patent encompasses only a method for evaluating and/or treating persons with medical or 

psychological conditions and thus using VRIT techniques for non-medical purposes does 

not amount to “use” of plaintiff’s patent. 

I. Factual Background3

The ‘764 patent was issued to Dr. Lamson on July 30, 2002. The patent is entitled 

“Virtual Reality Immersion Therapy for Treating Psychological, Psychiatric, Medical, 

Educational and Self-Help Problems” and claims methods to evaluate and treat “a 

psychological, psychiatric, or medical condition in a human patient” using “an interactive 

virtual reality environment.” Appendix at 1. It is not disputed that the primary claims of 

the patent are claims 1, 19, 23, and 26. All other claims in the patent are derived 

therefrom. Claim 1 covers 

A method for treating a psychological, psychiatric, or medical condition in 

a human being, comprising: 

 

3

 The facts are taken from the parties’ pleadings and are undisputed unless noted. 
 5 

(a) choosing a psychological strategy for treating said psychological, 

psychiatric, or medical condition; 

(b) providing an interactive virtual reality environment; 

(1) said interactive virtual reality environment comprising a technology 

unit arranged to display to said human patient a plurality of virtual 

reality environments; 

(2) said technology unit having an input for receiving feedback 

responses to said interactive virtual reality environment from said 

human patient; 

(3) said technology unit arranged to change said virtual reality 

environment in response to said feedback responses from said 

human patient; 

(c) selecting said virtual reality environment to correspond to said 

psychological strategy; 

(d) encoding electronic instructions for said interactive virtual reality 

environment; 

(e) loading said electronic into said virtual reality technology unit; and 

(f) instructing said human patient how and when to use said virtual reality 

technology unit so as to experience said interactive virtual reality 

environment and how and when to provide feedback responses to said 

technology unit for changing said virtual reality environment so as to 

treat said psychological, psychiatric, or medical condition. 

App. to Def.’s Mot. Summ. J. 25, ECF No. 37-1 (“Appendix”). Claim 19 covers 

A method of treating a psychological, psychiatric, or medical condition in a 

human being comprising: 

(a) providing a plurality of sets of counseling directions for treating said 

psychological, psychiatric, or medical condition; 

(b) choosing one of said sets of counseling directions for treating said 

psychological, psychiatric, or medical condition of said human patient; 

(c) providing a virtual reality technology unit arranged to provide an 

interactive virtual reality environment; 

(1) said virtual reality technology unit being equipped with a display 

means; 

(2) said virtual reality technology unit also being equipped with an input 

means for receiving responses to said interactive virtual reality 

environment from said human patient; 

(d) providing a set of encoded electronic instructions for said virtual reality 

environment; 

(e) embedding said one set of counseling directions in said set of encoded 

electronic instructions for said interactive virtual reality environment; 
 6 

(f) loading said electronic into said virtual reality technology unit for 

displaying said interactive virtual reality environment; and 

(g) instructing said human patient how and when to use said virtual reality 

technology unit to display said interactive virtual reality environment 

and how to provide responses to said virtual reality environment. 

Id. at 26. Claim 23 covers 

A method for treating a psychological, psychiatric, or medical condition in 

a human being comprising: 

(a) providing a plurality of sets of counseling directions for treating said 

psychological, psychiatric, or medical condition; 

(b) choosing one of said sets of counseling directions for treating said 

psychological, psychiatric, or medical condition of said human patient; 

(c) providing a virtual reality technology unit arranged to provide an 

interactive virtual reality environment; 

(1) said virtual reality technology unit being equipped with a display 

means; 

(2) said virtual reality technology unit also being equipped with an input 

means for receiving responses to said interactive virtual reality 

environment from said human patient; 

(d) providing a set of encoded electronic instructions for said virtual reality 

environment; 

(e) embedding said one set of counseling directions in said set of encoded 

electronic instructions for said interactive virtual reality environment; 

(f) loading said electronic into said virtual reality technology unit for 

displaying said interactive virtual reality environment; and 

(g) instructing said human patient how and when to use said virtual reality 

technology unit to display said interactive virtual reality environment 

and how to provide responses to said virtual reality environment. 

Id. Claim 26 covers 

A method for evaluating a psychological, psychiatric, or medical condition 

in a human being, comprising: 

(a) providing a virtual reality technology unit; 

(b) said virtual reality technology unit being equipped with the following: 

(1) a display means for displaying a virtual reality environment; 

(2) an input means for receiving responses to said virtual reality 

environment from said human patient; and 
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(3) a scoring means for quantitatively analyzing said psychological, 

psychiatric, or medical condition of said patient; 

(c) providing a set of encoded electronic instructions for causing said 

virtual reality environment to provide, on said display means, graphical 

representations of an environment which affects said psychological, 

psychiatric, or medical condition of said human patient; 

(d) delivering said electronic instructions to said virtual reality 

environment; and 

(e) instructing said human patient how and when to use said virtual reality 

technology unit to interact with said virtual reality environment by 

providing responses to said graphical representations. 

Id. at 26-27. 

 Plaintiff bases his action for unauthorized use of the patent under § 1498(a) on 

several alleged direct and indirect uses by the United States through funding to third 

parties, including both medical treatment and non-medical use of VRIT with combat 

simulators. First, plaintiff alleges generally that personnel at the Department of Defense 

and the Department of Veterans Affairs (“VA”) medical facilities have used the 

inventions claimed in the patent for treatment. Second, he alleges that the United States 

funded the establishment of the University of California Institute for Creative 

Technologies (“ICT”) and, through ICT, funded the development of Full Spectrum 

Warrior, a virtual reality combat simulation program which uses virtual reality immersion 

techniques to habituate and desensitize soldiers to combat scenarios, and later funded the 

conversion of that program into programs such as Virtual Iraq and Virtual Afghanistan. 

Third, he alleges that various organizations have performed VRIT either directly or 

through subcontractors, including the Defense Centers of Excellence for Psychological 

Health and Traumatic Brain Injury, the Defense Advanced Research Projects Agency, the 

Naval Postgraduate School, the United States Army Telemedicine & Advanced 
 8 

Technology Research Center, the United States Army Training and Doctrine Command, 

the Pacific Telehealth & Technology Hui of the Joint Information Technology Center, 

ICT, the University of California–San Diego, TRICARE, and various VA hospitals and 

clinics. The government does not concede that these allegations are true but agrees for 

purposes of this motion that the court may assume the allegations to be true. 

II. Standard of Review

Under RCFC 56, summary judgment is appropriate “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” RCFC 56(a). The court’s task is to determine whether there exists a 

genuine issue of material fact for trial, and not “to weigh the evidence and determine the 

truth of the matter . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In 

ruling on a RCFC 56 motion, the court views the evidence in the light most favorable to 

the nonmoving party, drawing reasonable inferences in its favor. See Schooner Harbor 

Ventures, Inc. v. United States, 569 F.3d 1359, 1362 (Fed. Cir. 2009); Galvin v. Eli Lilly 

& Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007). If the court finds that a rational trier of 

fact could not find for the nonmoving party, then there is no genuine issue for trial and 

the movant is entitled to summary judgment. Ricci v. DeStefano, 557 U.S. 557, 586 

(2009) (quoting Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986)). This case is appropriate for summary judgment, as the parties have not raised 

any disputes regarding material facts; instead, the court is faced solely with questions of 

law. 

III. Statutory Background
 9 

 This case involves the interplay of two statutes: 28 U.S.C. § 1498(a) and 35 U.S.C. 

§ 287(c).4

 The first, 28 U.S.C. § 1498(a), dates back to June 28, 1910, and provides a 

cause of action against the United States for unauthorized use of a patent. In its current 

form, the statute provides, in relevant part: 

Whenever an invention described in and covered by a patent of the United 

States is used or manufactured by or for the United States without license 

of the owner thereof or lawful right to use or manufacture the same, the 

owner’s remedy shall be by action against the United States in the United 

States Court of Federal Claims for the recovery of his reasonable and entire 

compensation for such use and manufacture. Reasonable and entire 

compensation shall include the owner’s reasonable costs, including 

reasonable fees for expert witnesses and attorneys, in pursuing the action if 

the owner is an independent inventor, a nonprofit organization, or an entity 

that had no more than 500 employees at any time during the 5-year period 

preceding the use or manufacture of the patented invention by or for the 

United States. Nothwithstanding [sic] the preceding sentences, unless the 

action has been pending for more than 10 years from the time of filing to 

the time that the owner applies for such costs and fees, reasonable and 

entire compensation shall not include such costs and fees if the court finds 

that the position of the United States was substantially justified or that 

special circumstances make an award unjust. 

For the purposes of this section, the use or manufacture of an invention 

described in and covered by a patent of the United States by a contractor, a 

subcontractor, or any person, firm, or corporation for the Government and 

with the authorization or consent of the Government, shall be construed as 

use or manufacture for the United States. . . . 

28 U.S.C. § 1498(a). 

By its terms, an action under § 1498(a) against the United States for unauthorized 

use is similar to an action for infringement under Title 35. While parallel to each other, 

 

4

 To date, there has been only one other decision interpreting § 287(c), Emtel, Inc. v. Lipidlabs, 

Inc., 583 F. Supp. 2d 811 (S.D. Tex. 2008). As the court in that case stated, issues involving the 

application of § 287(c) are rare. Id. at 814 (“This suit raises an issue rarely addressed in the case 

law: the application of the medical immunity provision of 35 U.S.C. § 287(c)(1).”). 
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the actions are not identical. Motorola, Inc. v. United States, 729 F.2d 765, 768 (Fed. 

Cir. 1984) (quoting Calhoun v. United States, 453 F.2d 1385, 1391 (Ct. Cl. 1972)). In 

this connection, it is well-settled that the United States, in defending an action under § 

1498(a), may avail itself of any defense that is available to a private party in an 

infringement action brought under Title 35. See id. at 729 (quoting 28 U.S.C. § 1498 

(1948) (Revisor’s Note)). However, the law is also clear that the United States does not 

benefit from every statutory limitation on liability available to private litigants in actions 

brought under Title 35. Id. at 769-70. Specifically, in Motorola the Federal Circuit 

determined that the limitations on damages set forth in §§ 287(a)-(b) do not apply to 

actions under § 1498(a). Id. at 766. These sections require marking of patented 

inventions and notice from patent holders to alleged infringers, limiting damages to the 

period after the alleged infringer had notice of the patent either because the product was 

marked or because the infringer received actual notice of infringement. Id. at 768. The 

Motorola court reasoned that the limitations on damages provisions in §§ 287(a)-(b) did 

not extend to claims brought against the United States under § 1498 on the grounds that 

Congress intended only for the defenses used by private litigants to be incorporated into § 

1498. Id. at 769-70. The circuit based its conclusion largely on the language of the 

Revisor’s Note to § 1498, which appeared in 1948 and stated that all “defenses” available 

to a private party are available to the United States. Id. The Revisor’s Note states, in 

pertinent part: 

Provisions contained in the second proviso of section 68 of Title 35, 

U.S.C., 1940 ed., relating to right of the United States to any general or 

special defense available to defendants in patent infringement suits, were 
 11 

omitted as unnecessary. In the absence of statutory restriction, any defense 

available to a private party is equally available to the United States. 

28 U.S.C. § 1498 (1948) (Revisor’s Note). 

As noted above, the second statute, 35 U.S.C. § 287(c), is a medical immunity 

provision which was established in 1996 as part of the Omnibus Consolidated 

Appropriations Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996). The provision was 

enacted in response to concerns that medical practitioners could be liable for 

infringement when using patented medical procedures without a license. See Emtel, Inc. 

v. Lipidlabs, Inc., 583 F. Supp. 2d 811, 820 & n.3 (S.D. Tex. 2008) (citing various 

publications). This provision provides, in relevant part: 

(1) With respect to a medical practitioner’s performance of a medical 

activity that constitutes an infringement under section 271(a) or (b), the 

provisions of sections 281, 283, 284, and 285 shall not apply against the 

medical practitioner or against a related health care entity with respect 

to such medical activity. 

(2) For the purposes of this subsection: 

(A) the term “medical activity” means the performance of a medical or 

surgical procedure on a body, but shall not include (i) the use of a 

patented machine, manufacture, or composition of matter in 

violation of such patent, (ii) the practice of a patented use of a 

composition of matter in violation of such patent, or (iii) the 

practice of a process in violation of a biotechnology patent. 

(B) the term “medical practitioner” means any natural person who is 

licensed by a State to provide the medical activity described in 

subsection (c)(1) or who is acting under the direction of such person 

in the performance of the medical activity. 

(C) the term “related health care entity” shall mean an entity with which 

a medical practitioner has a professional affiliation under which the 

medical practitioner performs the medical activity, including but not 

limited to a nursing home, hospital, university, medical school, 
 12 

health maintenance organization, group medical practice, or a 

medical clinic. 

(D) the term “professional affiliation” shall mean staff privileges, 

medical staff membership, employment or contractual relationship, 

partnership or ownership interest, academic appointment, or other 

affiliation under which a medical practitioner provides the medical 

activity on behalf of, or in association with, the health care entity. 

28 U.S.C. § 287(c). 

IV. DISCUSSION 

A. The United States May Avail Itself of the Medical Immunity Provision 

of § 287(c)

As noted above, there is no dispute between the parties regarding whether the 

alleged activities undertaken by the United States in connection with the treatment of 

individuals at DOD or VA medical clinics and hospitals or through subcontracts at 

various medical facilities identified by plaintiff fall within the ambit of the activities 

covered under § 287(c). Instead, the dispute between the parties centers solely on 

whether or not the United States may avail itself of § 287(c) as a defense to plaintiff’s 

allegations of unauthorized use. 

The government argues that § 287(c) is a defense to patent infringement 

allegations and is therefore incorporated into § 1498(a) by virtue of clear precedent that 

states that the United States my avail itself of any defense available to a private litigant in 

infringement litigation. This principle, as discussed above, is derived from the Reviser’s 

note to § 1498, which expressly states that “any defense available to a private party is 

equally available to the United States.” 28 U.S.C. § 1498 (1948) (Revisor’s Note). The 

government distinguishes § 287(c) from §§ 287(a)-(b) and the holding in Motorola on the 
 13 

grounds that § 287(c) is not a limitation on damages but is instead a defense to liability 

for those who meet its terms, arguing that while §§ 287(a)-(b) limit the damages that may 

be awarded if infringement is found, § 287(c) serves as a full bar to a lawsuit in the first 

instance. 

In response, plaintiff argues that § 287(c) may not be used as a defense under § 

1498(a) because § 287(c) is found in Title 35 and the remedial scheme established in 

Title 35 for patent infringements by private parties is separate and distinct from the 

unauthorized use provision of § 1498(a) applicable to the United States. Therefore, 

plaintiff argues, absent evidence that Congress expressly incorporated the § 287(c) 

defense into § 1498, the government cannot avail itself of the defense. The plaintiff 

further argues that Congressional intent cannot be inferred from the Revisor’s Note to § 

1498 because nowhere in the legislative history of § 287(c) is there any indication that 

Congress intended for § 287(c) to apply under § 1498(a). 

The court agrees with the government that the defense is available to the United 

States in actions brought under § 1498(a). Specifically, regardless of whether § 1498(a) 

creates a cause of action that is separate from patent infringement under Title 35, the 

Federal Circuit recognized in Motorola that any defense available to a party in private 

infringement litigation is automatically available to the United States in an action under 

§ 1498(a). See Motorola, 729 F.2d at 769. Thus, to the extent that § 287(c) is a defense 

to liability, the United States may avail itself of the defense. 

Here, it is clear from both the text of the provision and the legislative history that § 

287(c) is a defense and thus is available to the government under § 1498(a). A limitation 
 14 

on damages prevents a plaintiff from being awarded some or all damages in certain 

situations, though a court may still award an injunction or enter a declaratory judgment. 

A defense, on the other hand, is a complete bar to any recovery or relief. The plain 

language of § 287(c) states that “the provisions of sections 281, 283, 284, and 285 shall 

not apply against the medical practitioner or against a related health care entity with 

respect to such medical activity.” 35 U.S.C. § 287(c) (emphasis added). Thus, the 

provision immunizes the practitioner and the institutions they work for from all liability 

for infringement in connection with medical treatment. In contrast to the limitation on 

liability provisions in §§ 287(a)-(b), § 287(c) does not simply limit the liability of those 

individuals and institutions, but rather immunizes them from liability. In addition to 

preventing the recovery of any damages, § 287(c) also disallows the granting of an 

injunction, awards of attorneys’ fees, and the overall remedy of a civil action for 

infringement. 35 U.S.C. § 287(c). As a result, the provision is broader than a mere 

limitation on damages, which only prevents some recovery of damages; under § 287(c), a 

qualifying entity cannot be held to have infringed. Accordingly, the court finds that § 

287(c) is a defense rather than a limitation on damages. 

The status of § 287(c) as a defense is confirmed by the legislative history of the 

provision.5

 The Conference Report states that the provision “precludes the filing of [a] 

 

5

 The decision to place the medical immunity defense in § 287, which previously dealt only with 

the unrelated aspects of marking and notice, is not explained anywhere in the legislative history. 

The defense was passed as part of an appropriations bill and was not part of any larger effort to 

amend patent law. The bill did not amend § 287 directly, and did not include any instructions on 

the codification of the provision. Thus, it appears that it was simply added to the end of § 287. 

See Gerald J. Mossinghoff, Remedies Under Patents on Medical and Surgical Procedures, 78 J. 
 15 

civil action for damages or injunctive relief” against a medical practitioner and others 

identified in the provision. H.R. Rep. No. 104-863, at 852-53 (1996) (Conf. Rep.).6

 

Thus, in contrast to § 287(a)-(b), which the Motorola court noted “was never thought of 

as a defense,” 729 F.2d at 770, § 287(c) was always thought of as a defense. 

Plaintiff’s contention that the United States cannot avail itself of the defense 

established in § 287(c) because Congress did not expressly identify § 1498 in Title 35 is 

without merit. It is a well-established principle that Congress is presumed to be “aware 

of existing law when it passes legislation.” Mississippi ex rel. Hood v. AU Optronics 

Corp., -- U.S. --, 134 S. Ct. 736, 742 (2014) (quoting Hall v. United States, 566 U.S. --, 

132 S. Ct. 1882, 1889 (2012)) (internal quotation marks omitted). Congress was well 

aware of § 1498 and the Revisor’s Note, when § 287(c) was enacted, and thus Congress 

understood that express reference to specific defenses to patent infringement claims is not 

necessary for the government to rely on a defense available to private litigants in claims 

brought under § 1498(a). For this reason, it was not necessary to expressly incorporate § 

287(c) into § 1498. See, e.g., Avocent Redmond Corp. v. United States, 93 Fed. Cl. 399, 

 

Pat. & Trademark Off. Soc’y 789, 789-96 (1996); Leisa Talbet Peschel, Revisiting the 

Compromise of § 287(c), 16 Tex. Intell. Prop. L.J. 299, 306-11 (2008). 

6

 The view that § 287(c) provides a defense to liability is also consistent with the only other 

decision to consider the provision. In Emtel, Inc. v. Lipidlabs, Inc., the court began its analysis 

by noting that “[s]ection 287(c) is properly understood as an immunity provision.” 583 F. Supp. 

2d at 818 (citing Charles Alan Wright & Charles H. Koch, Jr., 33 Federal Practice and Procedure 

§ 8320 (3d ed. 2006)). Section 287(c) is also characterized as a “defense” in several treatises on 

patent law, indicating that this is a reasonable conclusion. 6 R. Carl Moy, Moy’s Walker on 

Patents § 20:15 (4th ed. 2013); 2 Robert A. Matthews, Jr., Annotated Patent Digest § 11:228 

(2014). 
 16 

403 (2010) (holding that laches is available as a defense without express mention in § 

1498). Thus, the government is entitled to avail itself of the defense established in § 

287(c) without express reference in § 1498(a). 

Because § 287(c) establishes a defense to liability and the plaintiff’s allegations of 

unauthorized use extend to the precise circumstances addressed by § 287(c), all of 

plaintiff’s claims of unauthorized use associated with treatment of patients for 

psychological, psychiatric, or medical conditions must be dismissed.

B. Plaintiff’s Patent Does Not Extend to Non-Treatment Uses

In addition to the claims barred by § 287(c), plaintiff alleges that the United States 

also engaged in unauthorized use of the ‘764 patent by using it to develop and employ 

VRIT programs aimed at habituating and desensitizing soldiers. The government argues 

that it is entitled to summary judgment on these claims on the grounds that plaintiff’s 

patent extends only to psychological, psychiatric, and medical treatment and evaluation 

of human patients using VRIT. As a result, the government argues, there can be no 

liability for any uses of VRIT by the United States for uses beyond the scope of the 

patent. Plaintiff argues that the government has mischaracterized its patent and the 

government’s use of the patent for the purposes identified above should be characterized 

as “preventive medical” treatment and thus covered by the patent. This argument fails to 

the extent that these activities relate to medical treatment of patients with psychological, 

psychiatric, or medical conditions, as plaintiff argues, because the claim is then covered 

by § 287(c) and must be dismissed for the reasons discussed above. However, to the 

extent plaintiff is claiming that the development and use of VRIT for programs aimed at 
 17 

habituating and desensitizing soldiers amounts to use of the patent in general, the court 

agrees with the government that the ‘764 patent does not cover the uses alleged by 

plaintiff and thus these uses do not give rise to liability under § 1498(a).

To begin, this case involves a “method” patent. “A method patent claims a 

number of steps; [and] under [the Supreme Court]’s case law, the patent is not infringed 

unless all the steps are carried out.” Limelight Networks, Inc. v. Akamai Techs., Inc., -- 

U.S. --, 134 S. Ct. 2111, 2117 (2014) (citing Aro Mfg. Co. v. Convertible Top 

Replacement Co., 365 U.S. 336, 344 (1961)). An examination of plaintiff’s patent 

demonstrates that the critical element in all of those steps is that the method be used to 

treat or evaluate a psychological, psychiatric, or other medical condition in a human 

patient. The first step of Claim 1 states that a VRIT user “choos[es] a psychological 

strategy for treating said psychological, psychiatric, or medical condition” and the second 

step applies that strategy to a “human patient.” Appendix at 25. The first step of Claim 

19 states that a VRIT user “provid[es] a plurality of sets of instructions or steps for 

treating said psychological, psychiatric, or medical condition” and the second step applies 

those instructions or steps to a “human patient.” Id. at 26. The first step of Claim 23 

states that a VRIT user “provid[es] a plurality of sets of counseling directions for treating 

said psychological, psychiatric, or medical condition and the second step applies those 

directions to a “human patient.” Id. The second step of Claim 26 states that a VRIT user 

is evaluated using “a scoring means for quantitatively analyzing said psychological, 

psychiatric, or medical condition of said patient” and applies that analysis to a “human 

patient.” Id. at 27. In all of these methods, the performance of the patented method 
 18 

requires that VRIT be applied to a defined psychological, psychiatric, or medical 

condition in a human patient. 

Based on the foregoing, the court concludes that plaintiff’s patent does not extend 

to uses of VRIT beyond the treatment or evaluation of patients or individuals with 

existing psychological, psychiatric, or medical conditions. As a result, any claims based 

on uses that do not involve the treatment in human patients of psychological, psychiatric, 

or medical conditions must be dismissed. 

V. CONCLUSION

For the above-stated reasons, the court hereby GRANTS the government’s motion 

for summary judgment. The clerk is directed to enter judgment dismissing the case. 

Each party to bear its own costs. 

IT IS SO ORDERED. 

 

s/Nancy B. Firestone 

NANCY B. FIRESTONE 

Judge