UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer Technologies, Inc.

v. Civil No. 06-cv-100-JD

HemCon, Inc.

Procedural Order

HemCon, Inc. moves, in limine, to preclude evidence of

damages based on HemCon’s sales to the United States Army. In

support of its motion, HemCon contends that under 28 U.S.C. §

1498(a), this court lacks jurisdiction to consider claims for

damages due to infringement by a product that was used or

manufactured for the federal government and with the

authorization or consent of the federal government. HemCon asks

the court to rule, based on the evidence it has submitted, that §

1498(a) bars certain claims for damages in this case, making

evidence of those damages irrelevant and unfairly prejudicial. 

Alternatively, HemCon asks that its defense under § 1498(a) be

tried before the remaining damages issues.

Marine Polymer objects to HemCon’s motion. Marine Polymer

contends that § 1498(a) is an affirmative defense and is not

jurisdictional. See Advanced Software Design Corp. v. Fed.

Reserve Bank of St. Louis. 583 F.3d 1371, 1375 (Fed. Cir. 2009); 

Crater Corp. v. Lucent Techs., Inc., 423 F.3d 1260, 1264 (Fed.

Case 1:06-cv-00100-JD Document 259 Filed 04/01/10 Page 1 of 3
Cir. 2005); Toxgon Corp. v. BNFL, Inc., 312 F.3d 1379, 1381-82

(Fed. Cir. 2002). Marine Polymer argues that a motion in limine

is not an appropriate vehicle for seeking a ruling on the merits

of an affirmative defense and that as a motion for summary

judgment on the defense, the motion is untimely. 

In addition, Marine Polymer asserts that HemCon has waived

its defense under § 1498(a) by failing to raise it in response to

Marine Polymer’s motion for summary judgment on infringement. 

See, e.g., Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320 F.3d

1354, 1366-67 (Fed. Cir. 2003) (failure to raise affirmative

defense to infringement in opposition to summary judgment on

infringement results in waiver of defense); Diversey Lever, Inc.

v. Ecolab, Inc., 191 F.3d 1350, 1353 (Fed. Cir. 1999) (same). 

Marine Polymer also asserts that HemCon failed to fully

articulate the defense during discovery and failed to provide

timely supplementation of its discovery responses and asks the

court to impose a sanction precluding the defense. 

 HemCon has not responded to the issues raised by Marine

Polymer in its objection.

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Case 1:06-cv-00100-JD Document 259 Filed 04/01/10 Page 2 of 3
Conclusion

The final pretrial conference in this case is scheduled for

Wednesday, April 7, and jury selection is scheduled for April 14,

with evidence to begin on April 19, 2010. The issues raised in

HemCon’s motion in limine (document no. 219) and in Marine

Polymer’s objection (document no. 246) must be resolved before

trial.

Therefore, HemCon shall file a response to Marine Polymer’s

objection by 10:00 a.m. on Monday, April 5, 2010.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 1, 2010

cc: Julie M. Baher, Esquire

Garet K. Galster, Esquire

Daniel R. Johnson, Esquire

Heather E. Krans, Esquire

Joseph A. Kromholz, Esquire

Lynda Q. Nguyen, Esquire

Brian M. Poissant, Esquire

Daniel D. Ryan, Esquire

Ognian V. Shentov, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Leigh S. Willey, Esquire

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