Liberty Ammunition, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________

LIBERTY AMMUNITION, INC.,
Plaintiff-Cross-Appellant

v.

UNITED STATES,
Defendant-Appellant
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2015-5057, 2015-5061
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Appeals from the United States Court of Federal
Claims in No. 1:11-cv-00084-CFL, Judge Charles F.
Lettow.
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Decided: August 26, 2016
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STEPHEN B. JUDLOWE, McElroy Deutsch Mulvaney &
Carpenter, LLP, New York, NY, argued for plaintiff-cross-
appellant. Also represented by RIADH QUADIR; JOSEPH P.
LA SALA, MICHAEL RATO, Morristown, NJ; DANIEL F.
CORRIGAN, LAWRENCE E. BATHGATE II, Bathgate, Wegener
& Wolf P.C., Lakewood, NJ.

WALTER WAYNE BROWN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellant.
Also represented by BENJAMIN C. MIZER, JOHN J. FARGO,
CONRAD JOSEPH DEWITTE, JR.
2 LIBERTY AMMUNITION, INC. v. US

______________________

Before PROST, Chief Judge, NEWMAN, and STOLL, Circuit
Judges.
Opinion for the court filed by Circuit Judge STOLL.
Opinion concurring in part, dissenting in part filed by
Circuit Judge NEWMAN.
STOLL, Circuit Judge.
The United States appeals the decision of the Court of
Federal Claims that ammunition rounds used by the
United States Army embody the claims of Liberty Ammu-
nition, Inc.’s U.S. Patent No. 7,748,325 without authoriza-
tion, violating 28 U.S.C. § 1498. The Government argues
that the trial court erred in construing several claim
terms and that, when these terms are construed correctly,
the Army rounds do not embody the claimed invention.
We agree with the Government that the trial court erred
in two of its claim constructions because those construc-
tions are unsupported by the intrinsic record. Because
Liberty cannot prevail under the proper claim construc-
tions, we reverse the decision of the trial court and hold
that the Government does not practice the asserted
claims of Liberty’s patent in violation of § 1498.
Liberty cross-appeals the trial court’s disposal of its
breach of contract claim based on a non-disclosure agree-
ment (“NDA”) signed by the named inventor of the ’325
patent and an Army official. The trial court denied this
claim, holding that no enforceable contract ever formed
between the parties. We affirm because we find no clear
error in the trial court’s factual determination that the
Army official did not have authority to enter into an NDA
on behalf of the Government.
LIBERTY AMMUNITION, INC. v. US 3

BACKGROUND
I. The ’325 Patent
Liberty is the assignee of the ’325 patent, issued Ju-
ly 6, 2010, and “directed to a projectile structured to be
discharged from a firearm and designed to overcome the
disadvantages and problems associated with conventional
firearm projectiles such as, but not limited to lead or steel
jacketed projectiles.” ’325 patent col. 2 ll. 34–38.
The ’325 patent grew out of the U.S. military’s “Green
Ammunition Program,” or “Green Bullet” initiative, of the
1990s through 2000s. ’325 patent col. 1 ll. 15–30. This
initiative developed in response to concerns that lead-
based ammunition was polluting military training ranges
throughout the United States. The program sought to
eliminate lead from military ammunition, particularly the
Army standard-issue 5.56 mm round, 1 the M855. Around
the same time as the Green Bullet initiative, the Army
began receiving reports from soldiers that two of its
standard-issue lead-based rounds—the M855 and the
M80—were not exacting the desired lethality in soft-
tissue targets, such as humans or animals. Reports
indicated that these bullets would cause “through-and-
through” hits when striking at certain angles. Through-
and-through hits are those in which a projectile complete-
ly passes through a soft-tissue target. When a projectile
fails to lodge in a soft target’s tissue, incapacitation of the
target is compromised. The ’325 patent sought to address
this problem with the conventional Army rounds in addi-

1 This opinion, consistent with the art, uses the
term “projectile” to refer to what is commonly known as a
bullet, without any casing. For a bullet provided with a
ready-to-fire cartridge case, we reference the entire unit
as a “round.”
4 LIBERTY AMMUNITION, INC. v. US

tion to providing a lead-free design. Id. col. 2 ll. 12–19,
col. 3 ll. 1–7, col. 5 ll. 9–30.
Figure 1 of the ’325 patent, reproduced below, illus-
trates a preferred embodiment of the claimed projectile.

In this embodiment, an interface 18 “is disposed in inter-
connecting relation to both the nose portion 14 and the
tail portion 16.” ’325 patent col. 4 ll. 63–64. The
connection of nose 14 and tail 16 by the interface 18 can
be fixed or removable, with either configuration allowing
for separation of all three components when the projectile
strikes certain targets, such as soft-tissue targets. Id. col.
5 ll. 9–30. This interface design “eliminates the use of
lead and the provision of an outer jacket,” such as a
traditional full metal jacket, which completely surrounds
a projectile. Id. col. 2 ll. 39–40.
The ’325 patent specification describes that the inven-
tion’s design “significantly reduce[s] the area of contact of
the projectile body with the rifling or interior surface of
the barrel of the firearm,” id. col. 2 ll. 43–45, which means
there is “a reduced contact area as compared to conven-
tional projectiles,” id. col. 1 ll. 65–66. See also id. col. 2
LIBERTY AMMUNITION, INC. v. US 5

ll. 4–6 (“[T]he design and structuring of a proposed projec-
tile would result in a contact area thereon which would be
significantly less than a traditional jacketed lead bullet.”).
The reduction in contact area, the specification explains,
“results in significantly reduced bore friction and heat
buildup” and, thus, “barrel performance is improved
during sustained fire of the firearm thereby increasing
the barrel life and reducing the occurrence of fouling.” Id.
col. 7 ll. 6–9.
At issue in this appeal are independent claims 1 and
32, which recite:
1. A projectile structured to be discharged from
a firearm, said projectile comprising:
a body including a nose portion and a tail por-
tion,
said body further including an interface por-
tion disposed in interconnecting relation to said
nose and tail portions, said interface portion
structured to provide controlled rupturing of said
interface portion responsive to said projectile
striking a predetermined target,
said interface portion disposed and dimen-
sioned to define a reduced area of contact of said
body with the rifling of the firearm, said interface
portion maintaining the nose portion and tail por-
tion in synchronized rotation while being fixedly
secured to one another by said interface portion
whereby upon said projectile striking said prede-
termined target said interface portion ruptures
thereby separating said nose and tail portions of
said projectile.
32. A projectile structured to be discharged from
a firearm, said projectile comprising:
6 LIBERTY AMMUNITION, INC. v. US

a body including a nose portion and tail por-
tion,
said body further including an interface por-
tion disposed intermediate opposite ends of said
body in interconnecting relation to said nose and
tail portions, said interface portion structured to
provide controlled rupturing of said interface por-
tion responsive to said projectile striking a prede-
termined target, said interface portion
maintaining said nose portion and tail portion in
synchronized rotation while being fixedly secured
to one another by said interface portion whereby
upon said projectile striking said predetermined
target said interface portion ruptures thereby
separating said nose and tail portions of the pro-
jectile; and
said exterior surface of said interface portion
disposed and structured to define a primary area
of contact of said body with an interior barrel sur-
face of said firearm.
Id. col. 7 l. 57 – col. 8 l. 5, col. 9 l. 55 – col. 10 l. 16 (disput-
ed claim terms italicized).
II. Liberty Discussions with the Army
PJ Marx, named inventor of the ’325 patent, met with
various Army personnel to demonstrate ammunition he
had developed related to the projectile claimed by the ’325
patent. One such meeting occurred at Fort Benning on
February 17, 2005, between Mr. Marx and Lieuten-
ant Colonel Glenn Dean, 2 serving as Chief of Small Arms
for the U.S. Infantry Directorate of Combat Development

2 Lt. Col. Dean was a Major when he met with
Mr. Marx in 2005, but had achieved the rank of Lieuten-
ant Colonel by the time of trial.
LIBERTY AMMUNITION, INC. v. US 7

(“DCD”). DCD works with the Army infantry to deter-
mine its equipment needs and, in turn, works with pri-
vate industry to develop and source desired equipment.
Lt. Col. Dean, as Chief of Small Arms at DCD, developed
requirements for arms acquisitions, including ammuni-
tion. As part of his role in developing suitable acquisition
requirements, he met with industry representatives, like
Mr. Marx, to see what they had available to sell and to
keep apprised of new technology under development.
Mr. Marx and Lt. Col. Dean signed an NDA before
discussing Mr. Marx’s ammunition. After the agreement
had been signed, Mr. Marx discussed his “EPIC” projectile
prototype, which the parties agree is similar to the projec-
tile claimed by the ’325 patent. Mr. Marx left fifty loaded
EPIC rounds and one standalone EPIC projectile with
Lt. Col. Dean at the conclusion of their meeting at
Ft. Benning. Ultimately, the Army tested ten of those
rounds in non-standard weapons with poor results.
Mr. Marx, disappointed that the Army conducted tests
using non-standard weaponry, requested that the Army
return the remaining rounds, after which substantive
communication between him and DCD, including
Lt. Col. Dean, ceased.
III. The Present Suit
In February 2011, Liberty sued the Government. Lib-
erty first claimed that the Army’s use of the M855A1
5.56 mm (.223 caliber) and M80A1 7.62 mm (.308 caliber)
rounds, which respectively succeeded the M855 and M80
rounds, practiced claims of the ’325 patent without a
license from Liberty in violation of 28 U.S.C. § 1498. 3

3 28 U.S.C. § 1498 waives the Government’s sover-
eign immunity and provides a remedy “[w]henever an
invention described in and covered by a patent of the
United States is used or manufactured by or for the
8 LIBERTY AMMUNITION, INC. v. US

Liberty also claimed that the Army’s use of the M855A1
and M80A1 rounds breached various contracts the Army
entered into with Mr. Marx, including the NDA discussed
above between Mr. Marx and Lt. Col. Dean.
The trial court conducted a Markman hearing and is-
sued a claim construction order construing fifteen disput-
ed claim terms. Liberty Ammunition, LLC v. United
States, 111 Fed. Cl. 365 (2013). Relevant here, the trial
court construed the claim 1 term “reduced area of contact”
to mean “the area of contact between the interface and
the rifling of the firearm is less than that of a traditional
jacketed lead bullet of calibers .17 through .50 BMG,” id.
at 375; and the claim 32 term “intermediate opposite
ends” to mean that “the interface is positioned between or
in the middle of the opposite ends of the forward end of
the nose portion and the trailing end of the tail portion,”
id. at 380.
After holding a bench trial, the trial court issued an
opinion finding that the Government practiced independ-
ent claims 1 and 32, claims 2–3, 7–11, 18–20, 22, 25, 28–
31, which depend from claim 1, and claims 38–41, which
depend from claim 32. Liberty Ammunition, Inc. v. Unit-
ed States, 119 Fed. Cl. 368, 390, 392 (2014) (Trial Ct. Op.).
The trial court also found all asserted claims valid over

United States without license of the owner thereof or
lawful right to use or manufacture the same.” 28 U.S.C.
§ 1498(a); Astornet Techs. Inc. v. BAE Sys., Inc., 802 F.3d
1271, 1277 (Fed. Cir. 2015). “Although this court has
noted that a section 1498 action and a title 35 action are
only parallel and not identical, the principles of claim
construction and reading claims on accused devices and
methods are the same for either type of action.” Lemelson
v. United States, 752 F.2d 1538, 1548 (Fed. Cir. 1985)
(citing Motorola, Inc. v. United States, 729 F.2d 765, 768
(Fed. Cir. 1984)).
LIBERTY AMMUNITION, INC. v. US 9

the prior art raised by the Government and it entered a
damages award in Liberty’s favor. Id. at 392–98, 406.
The trial court found against Liberty on its breach of
contract claims, holding that the Government was not
bound by the NDA signed by Lt. Col. Dean and Mr. Marx
because Lt. Col. Dean lacked the authority to bind the
Government. Id. at 403–06.
The Government appeals several claim constructions
the trial court entered, the trial court’s holding that the
asserted patents are valid, and the trial court’s damages
award; Liberty cross-appeals the trial court’s damages
award and its holding that the NDA signed by
Lt. Col. Dean and Mr. Marx is not enforceable. We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
I. Government Appeal
The Government challenges several of the trial court’s
claim constructions, which we discuss in turn below.
The “ultimate interpretation” of a claim term, as well
as interpretations of “evidence intrinsic to the patent (the
patent claims and specifications, along with the patent’s
prosecution history),” are legal conclusions, which this
court reviews de novo. Teva Pharm. USA, Inc. v. Sandoz,
Inc., 135 S. Ct. 831, 841 (2015). “Subsidiary factual
determinations based on extrinsic evidence are reviewed
for clear error.” Info-Hold, Inc. v. Applied Media Techs.
Corp., 783 F.3d 1262, 1265 (Fed. Cir. 2015) (citing Teva,
135 S. Ct. at 841).
Claim construction seeks to ascribe the “ordinary and
customary meaning” to claim terms as they would be
understood to a person of ordinary skill in the art at the
time of invention. Phillips v. AWH Corp., 415 F.3d 1303,
1312 (Fed. Cir. 2005) (en banc) (citing Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
“[T]he claims themselves provide substantial guidance as
10 LIBERTY AMMUNITION, INC. v. US

to the meaning of particular claim terms,” id. at 1314, and
therefore “the context of the surrounding words of the
claim also must be considered in determining the ordi-
nary and customary meaning of those terms,” ACTV, Inc.
v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003).
But “the person of ordinary skill in the art is deemed to
read the claim term not only in the context of the particu-
lar claim in which the disputed term appears, but in the
context of the entire patent, including the specification.”
Phillips, 415 F.3d at 1313. Indeed, the specification is
“the single best guide to the meaning of a disputed term”
and “[u]sually, it is dispositive.” Id. at 1315 (quoting
Vitronics, 90 F.3d at 1582). Thus, claims “must be read in
view of the specification, of which they are a part.” Id.
(quoting Markman v. Westview Instruments, Inc., 52 F.3d
967, 979 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
(1996)).
A. “Reduced Area of Contact”
Claim 1 recites an “interface portion disposed and di-
mensioned to define a reduced area of contact of said body
with the rifling of the firearm.” ’325 patent col. 7 ll. 65–67
(emphasis added). The trial court construed the claim
term “reduced area of contact” to mean “the area of con-
tact between the interface and the rifling of the firearm is
less than that of a traditional jacketed lead bullet of
calibers .17 through .50 BMG.” Trial Ct. Op., 119 Fed. Cl.
at 390–91. The Government argues that the construction
should explicitly include the M855 round as a baseline
traditional jacketed lead bullet because the M855 is the
only prior art projectile explicitly named in the specifica-
tion. Specifically, the Government urges construing the
term as: “the area of contact between the projectile and
the rifling of the firearm is less than that of a traditional
jacketed projectile, which includes the M855.” The trial
court rejected this limitation as too restrictive, relying
instead on the specification’s statement that the invention
is enabled for “all calibers generally ranging from .17
LIBERTY AMMUNITION, INC. v. US 11

through [.]50 BMG.” Id. at 391 (alteration in original)
(quoting ’325 patent col. 2 ll. 27–28).
We begin our analysis by recognizing that the term
“reduced area of contact” is one of degree, as it necessarily
calls for a comparison against some baseline. Terms of
degree are problematic if their baseline is unclear to those
of ordinary skill in the art. We especially take caution
when presented with terms of degree following the Su-
preme Court’s decision in Nautilus, Inc. v. Biosig Instru-
ments, Inc., 134 S. Ct. 2120 (2014), which instructs that a
claim must “inform those skilled in the art about the
scope of the invention with reasonable certainty” to meet
the definiteness requirement of 35 U.S.C. § 112, ¶ 2, id. at
2129. While our post-Nautilus cases indicate that terms
of degree are not “inherently indefinite” in light of the
Supreme Court’s decision, we have recognized that claims
having terms of degree will fail for indefiniteness unless
they “provide objective boundaries for those of skill in the
art” when read in light of the specification and the prose-
cution history. Interval Licensing LLC v. AOL, Inc., 766
F.3d 1364, 1370–71 (Fed. Cir. 2014), cert. denied, 136
S. Ct. 59 (2015).
As the trial court correctly noted in this case, “[t]here
are no clues within Claim 1 itself as to what the area of
contact has been reduced from.” Trial Ct. Op. 119
Fed. Cl. at 390 (internal quotation marks omitted). The
’325 patent specification, however, saves the term “re-
duced area of contact” from indefiniteness. The Back-
ground of the Invention section first narrows the
ambiguity by disclosing that the patent’s proposed projec-
tile has “a reduced contact area as compared to conven-
tional projectiles.” ’325 patent col. 1 ll. 65–66. The
question then becomes: What constitutes a conventional
projectile? Again, the specification guides. Discussing the
industry need for a projectile capable of “assum[ing]
various densities while distinguishing the weight of the
projectile from its size,” the Background of the Invention
12 LIBERTY AMMUNITION, INC. v. US

identifies the M855 round as a specific conventional
projectile that the invention seeks to improve upon:
Currently, NATO 5.56 mm M855(SS109) projec-
tiles comprise a steel/lead core placed in a copper
jacket which weighs 62 grains. Ideally, an im-
proved projectile could be proposed and developed
having the same physical dimensions but having
an increased weight, of for example 107 grains or
a 72 percent weight increase. In order to achieve
the same weight utilizing the conventional jacket-
ed lead projectile a significant change in the
length of the projectile would have to be assumed.
’325 patent col. 1 ll. 35–43. This is the specification’s only
mention of a specific conventional projectile, strongly
suggesting that the M855 round is the point of compari-
son for the claims. Indeed, Liberty itself embraces the
view that the patentee intended for the invention claimed
in the ’325 patent to improve upon the M855 round. See
Liberty Op. Br. 4 4, 8 (having sequential fact sections
entitled “Background: The Army’s M855 Standard Rifle
Round – Its Deficiencies and the Quest to Replace It”; and
“The ’325 Patented Solution”).
Given the specification, the M855 round is the proper
baseline for the claim limitation “reduced area of contact,”
at least for 5.56 mm projectiles. In other words, one of
skill in the art would appreciate the M855 round as the
standard for determining whether a 5.56 mm projectile’s
area of contact has been reduced, as required by the claim
limitation. We also recognize that the specification men-
tions the M855 round in conjunction with NATO. Indeed,
at the time the ’325 patent application was filed, the

4 “Liberty Op. Br.” refers to the first brief Liberty
filed in this case, which responded to the Government’s
opening brief and introduced Liberty’s counterclaims.
LIBERTY AMMUNITION, INC. v. US 13

M855 round served as the 5.56 mm standard-issue round
for NATO and the Army. Trial Ct. Op., 119 Fed. Cl. at
375–77. Relying on the reference to NATO in the specifi-
cation, we conclude that one of skill in the art would have
looked to the NATO standard-issue round of correspond-
ing caliber at the time of the ’325 patent to establish the
baseline projectile. For a 7.62 mm projectile, this was the
M80 round. Trial Ct. Op., 119 Fed. Cl. at 375–76.
We therefore construe the term “reduced area of con-
tact” to mean “the area of contact between the interface
and the rifling of the firearm is less than that of a conven-
tional jacketed lead projectile, which derives from the
corresponding caliber NATO standard-issue round as of
October 21, 2005,” which we specifically note is the M855
round for 5.56 mm projectiles and the M80 round for
7.62 mm projectiles.
The trial court’s construction to the contrary is incor-
rect because it does not properly capture the specifica-
tion’s discussion of conventional projectiles, as discussed
above. The trial court was correct to note that “the speci-
fication recites ‘a reduced contact area as compared to
conventional projectiles.’” Trial Ct. Op., 119 Fed. Cl. at
390 (citing ’325 patent col. 1 ll. 65–66). There is, however,
no reason to link, as the trial court did, the specification’s
mention of conventional projectiles with its later discus-
sion of enabling all calibers, which are distinct concepts.
The correct link is the one we have drawn between the
specification’s discussion of the NATO standard-issue
M855 round and the mention several lines below of a
conventional jacketed lead projectile, which harkens back
to the M855. ’325 patent col. 1 ll. 34–43.
We also note that the trial court’s implicit determina-
tion that claim 1 satisfies the definiteness requirements of
§ 112 ¶ 2 under its construction does not comport with our
14 LIBERTY AMMUNITION, INC. v. US

decision in Interval. 5 Claim 1 would not be definite had
the trial court’s construction been correct because there
would not be a sufficient objective boundary around the
term of degree “reduced area of contact.” It is true that
the trial court did objectively limit the claim language by
including the “.17 through .50 BMG caliber” guidepost in
its construction. This standard is objective in the sense
that it defines a set range of calibers from which the
baseline projectile may be drawn. Yet, even after limiting
the field of baseline projectiles according to the trial
court’s construction, a multitude of candidates for the
conventional baseline projectile would remain for each
caliber within that range, making the claim indefinite
under Interval.
The trial court’s failure to properly apply the exacting
“objective boundaries” standard from Interval is well-
illustrated by the parties’ application of the trial court’s
construction. Together, the parties’ experts examined a
vast number of different 5.56 mm projectiles as baselines
for the accused M855A1 round, twenty-six in total. Yet,

5 While the trial court did not specifically rule on
definiteness, the Government argued that a construction
not specifically designating a baseline for the “reduced
area of contact” limitation would be indefinite under § 112
¶ 2. See Government’s Markman Brief, Joint Appendix
(“J.A.”) 140; Transcript of Government’s Argument at
Markman Hearing, J.A. 925–27. The trial court, adopting
a construction which did not include a specifically desig-
nated baseline, nevertheless found that the Government
practiced claim 1 of the ’325 patent. Trial Ct. Op., 119
Fed. Cl. at 392. Because only a valid claim may be in-
fringed, Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573,
1580 (Fed. Cir. 1983), the trial court necessarily deter-
mined that the claim, as it construed it, satisfied § 112 ¶ 2
and was valid.
LIBERTY AMMUNITION, INC. v. US 15

Liberty’s expert did not include the accused M855A1
round’s predecessor—the M855—among the seven base-
lines that he tested, despite the M855 round being the
only prior art projectile described in the ’325 patent and
his own testimony that there is no reason not to use the
M855 round for the baseline. For the accused M80A1
round, the experts examined fifteen 7.62 mm baseline
projectiles, four coming from Liberty’s expert and eleven
from the Government’s expert. Although Liberty’s expert
did include the accused M80A1 round’s predecessor—the
M80—as an M80A1 baseline in his expert report, he later
acknowledged that his test of the M80 projectile was
flawed. Trial Ct. Op., 119 Fed. Cl. at 392 n.36. He did
not retest the M80 and did not testify about the compari-
son between the M80A1 and the M80 at trial. Id.
Based on his testing, Liberty’s expert found that the
accused Army projectiles had a reduced area of contact as
compared to “a number”—but not all—of the tested base-
lines. Trial Ct. Op., 119 Fed. Cl. at 392. The trial court
found these mixed results sufficient to show that the
accused projectiles satisfy the “reduced area of contact”
limitation. But a term of degree cannot be definite when
construed in a manner that lends itself to this sort of
scattershot infringement analysis because “a term of
degree fails to provide sufficient notice of its scope if it
depends ‘on the unpredictable vagaries of any one per-
son’s opinion.’” Interval, 766 F.3d at 1371 (quoting
Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342,
1350 (Fed. Cir. 2005), abrogated on other grounds, Nauti-
lus, 134 S. Ct. at 2127).
Turning to whether the accused projectiles read on
claim 1 as properly construed, it is undisputed that the
accused projectiles have an increased contact area when
compared to the M855 and M80, respectively, based on
the evidence presented at trial. An Army engineer in-
volved in the development of the accused projectiles
testified that the Army purposefully designed the projec-
16 LIBERTY AMMUNITION, INC. v. US

tiles to have a greater area of contact than their predeces-
sor M855 and M80 projectiles. Indeed, the test results
from the Government’s expert showed that the accused
projectiles had a greater area of contact than their prede-
cessor M855 and M80 projectiles. See Trial Ct. Op., 119
Fed. Cl. at 391.
We find it telling that Liberty did not test the accused
M855A1 projectile against the predecessor M855 projec-
tile and did not present testimony at trial comparing the
area of contact of the accused M80A1 projectile with the
predecessor M80 projectile. It is important to note that
while the trial court’s construction did not limit the base-
line projectile to the M855 and M80, these rounds re-
mained in play after the Markman hearing because they
were within the scope of the trial court’s construction.
Liberty knew that the Government was testing against
the M855 and M80 projectiles and had ample opportunity
to rebut the Government’s expert’s findings for these
projectiles, but failed to do so. Liberty’s own expert
testified that there is no reason not to use the M855
round as the baseline projectile, but that he chose not to
include it among the twenty-six rounds that he tested. He
also testified that he did not retest the M80 projectile
after admittedly miscalculating the area of contact in his
expert report. See id. at 392 n.36. With no evidence in its
favor, we find that Liberty cannot carry its burden of
showing the accused projectiles meet the “reduced area of
contact” limitation and hold that the Government does
not practice asserted claim 1, which includes this limita-
tion, or the claims that depend from claim 1. See Lemel-
son, 752 F.2d at 1551 (explaining that in cases brought
under § 1498 “[i]t is . . . well settled that each element of a
claim is material and essential, and that in order for a
court to find infringement, the plaintiff must show the
presence of every element or its substantial equivalent in
the accused device”).
LIBERTY AMMUNITION, INC. v. US 17

B. “Intermediate Opposite Ends”
Claim 32 recites “a body including a nose portion and
tail portion, said body further including an interface
portion disposed intermediate opposite ends of said body.”
’325 patent col. 10 ll. 1–3 (emphasis added). The trial
court construed the claim term “intermediate opposite
ends” to mean “that the interface is positioned between or
in the middle of the opposite ends of the forward end of
the nose portion and the trailing end of the tail portion.”
Trial Ct. Op., 119 Fed. Cl. at 389. The Government
argues that the construction should be further limited, in
relevant part, “such that the interface does not extend all
of the way to the front or to the end of the projectile.” The
trial court rejected this limitation, relying on our decision
in Lucent Technologies, Inc. v. Gateway, Inc., 525 F.3d
1200 (Fed. Cir. 2008). Trial Ct. Op., 119 Fed. Cl. at 390.
The trial court interpreted Lucent to mean that because
“including” precedes the term “intermediate opposite
ends,” the claimed interface may cover more than just the
middle portion of a round. Id. In other words, the trial
court concluded that so long as the interface was posi-
tioned, in part, between the forward end and the trailing
end of the projectile, it did not matter if the interface was
also positioned outside of that prescribed area.
We conclude that the Government’s proposed con-
struction is fully supported by the plain claim language
and specification. While the open-ended term “including”
does precede “intermediate opposite ends,” our prior
decisions have warned against using terms such as “com-
prising,” or “including,” as “weasel word[s] with which to
abrogate claim limitations.” Dippin’ Dots, Inc. v. Mosey,
476 F.3d 1337, 1343 (Fed. Cir. 2007) (quoting Spectrum
Int’l, Inc. v. Sterilite Corp., 164 F.3d 1372, 1380 (Fed. Cir.
1998)). The trial court’s refusal to limit the projectile’s
interface so that it does not extend all of the way to the
forward or trailing ends of the projectile goes against this
admonition and significantly diminishes the “intermedi-
18 LIBERTY AMMUNITION, INC. v. US

ate opposite ends” limitation, almost to the point of ren-
dering it a nullity.
The very essence of the “intermediate opposite ends”
limitation is to define a precise position for the interface:
between the nose and tail ends of the projectile. The trial
court’s construction chips away at this precision by per-
mitting an interface that is not only between the opposing
ends, but also outside that position to read on the claim
language. As such, the construction is broad enough to
cover a traditional full metal jacket surrounding the
entire projectile, a fact which Liberty’s counsel acknowl-
edged and embraced at oral argument. Oral Argument at
17:32–20:24, available at http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2015-5057.mp3. This under-
standing, however, contradicts the ’325 patent specifica-
tion, which unequivocally distinguishes the claimed
invention from projectiles with such a jacketed design.
’325 patent col. 1 ll. 62–63 (“[I]mproved projectile would
preferably involve a proposal which eliminates the use of
a jacketed projectile.”), col. 2 ll. 39–40 (“[T]he projectile of
the present invention eliminates the use of lead and the
provision of an outer jacket.”), col. 6 ll. 63–64 (“[I]t is
emphasized that the projectile body[] is not jacketed as in
conventional copper jacketed projectiles.”), col. 7 ll. 39–44
(“[S]tructural and operative features of the projectile[],
including the cooperative components of the nose por-
tion[], tail portion[] and interface[], overcome many of the
disadvantages and problems normally associated with
conventional firearm projectiles through the provision of a
non-jacketed structure and the elimination of lead.”).
The trial court erred in its application of Lucent. In
Lucent we held that when open-ended terms like “includ-
ing” or “comprising” introduce a claim element(s), “other
elements may be added” to the claimed element(s) and the
resulting structure might still read on the claim at issue.
Lucent, 525 F.3d at 1214 (emphasis added). An earlier
case, Gillette Co. v. Energizer Holdings, Inc., 405 F.3d
LIBERTY AMMUNITION, INC. v. US 19

1367 (Fed. Cir. 2005), illuminates when the principle we
discussed in Lucent applies. The patent at issue in Gil-
lette claimed a razor “comprising” a first, second, and
third razor blade. Id. at 1369. We held that this claim
does not necessarily exclude a razor that has a fourth
blade in addition to a first, second, and third blade. Id. at
1374.
The factual scenario described in Gillette and applied
in Lucent is readily distinguishable from the one before us
now. The Government’s construction of “intermediate
opposite ends” does not prevent, as Lucent and Gillette
caution against, the claimed projectile from including
additional non-claimed structural elements. Instead, the
Government’s construction gives proper meaning to a
structural element that is claimed—the projectile inter-
face. We therefore construe the term “intermediate
opposite ends” to mean “the interface is positioned be-
tween the front end and the rear end of the projectile body
such that the interface does not extend all of the way to
the front end or to the rear end of the projectile.”
Under this construction, it is apparent that the ac-
cused Army rounds do not meet the “intermediate oppo-
site ends” limitation. The accused M855A1 projectile,
depicted in the trial court opinion’s principal findings of
fact section and reproduced below, includes an interface
that extends to, and covers, the rear end of the projectile.

Trial Ct. Op., 119 Fed. Cl. at 383. The trial court de-
scribed the M855A1 as comprising “a steel nose ogive with
an exposed tip, a tail portion containing a copper slug,
20 LIBERTY AMMUNITION, INC. v. US

and a surrounding thin jacket that connects the nose and
tail.” Trial Ct. Op., 119 Fed. Cl. at 383 (footnote omitted).
This explanation that the jacket surrounds a projectile
with an exposed tip adds to what is already made clear by
the figure: only the front end is exposed and the rear end
is covered by the jacket. The accused M80A1 projectile
incorporates a similar interface.

Id. at 384.
On these facts, the accused projectiles cannot satisfy
the “intermediate opposite ends” limitation. Liberty has
acquiesced to the trial court’s factual findings, so we need
not remand for any further factual determinations. See
Liberty Op. Br. 4 n.1. With the “intermediate opposite
ends” limitation not met by the accused projectiles, we
conclude that the Government does not practice asserted
claim 32, which includes this limitation, or the claims
that depend from claim 32. See Lemelson, 752 F.2d at
1551.
Because the accused Army rounds meet neither the
“intermediate opposite ends” limitation nor the “reduced
area of conduct” limitation—one of which appears in all
asserted claims—we hold that the Government has not
violated Liberty’s patent rights under § 1498. According-
ly, we do not address the “controlled rupturing” construc-
tion challenged by the Government, as we need not decide
more than is necessary to dispose of the case regarding
LIBERTY AMMUNITION, INC. v. US 21

the ’325 patent. For the same reason, we do not address
the Government’s invalidity argument or either party’s
challenge to the trial court’s damages award, which we
hereby vacate.
II. Liberty Cross-Appeal
Liberty argues the M855A1 and M80A1 Army projec-
tiles exploit technology protected by the NDA that
Lt. Col. Dean signed when he met with Liberty’s repre-
sentative, Mr. Marx, in 2005. The trial court held that
there is no enforceable agreement between the parties
because it found that Lt. Col. Dean did not have the
requisite authority to enter the NDA on the Government’s
behalf. We find no clear error in the trial court’s factual
determination regarding Lt. Col Dean’s lack of authority
and affirm that the NDA is not enforceable.
A Government agent must have actual authority to
bind the Government to a contract. Trauma Serv. Grp. v.
United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997).
Although apparent authority—which exists when an
agent with no actual authority holds himself out to have
such authority to another’s detriment—can generally bind
a principal, the Government is immune to actions of its
agents who merely possess apparent authority. Our past
cases have elaborated on the precept that there must be
actual authority for an agent to bind the Government:
It is a well recognized principle of procurement
law that the contracting officer, as agent of the
executive department, has only that authority ac-
tually conferred upon him by statute or regula-
tion. . . . The government is not bound by its
agents acting beyond their authority and contrary
to regulation. A contractor who enters into an ar-
rangement with an agent of the government bears
the risk that the agent is acting outside the
bounds of his authority, even when the agent
22 LIBERTY AMMUNITION, INC. v. US

himself was unaware of the limitations on his au-
thority.
CACI, Inc. v. Stone, 990 F.2d 1233, 1236 (Fed. Cir. 1993)
(internal citations omitted); see also H. Landau & Co. v.
United States, 886 F.2d 322, 324 (Fed. Cir. 1989)
(“[A]pparent authority will not suffice to hold the govern-
ment bound by the acts of its agents.”). Liberty recogniz-
es this limit on Government contracting authority and
does not contend that Lt. Col. Dean possessed apparent
authority to enter the NDA. Rather, Liberty asserts
Lt. Col. Dean possessed actual authority.
Actual authority may be either express or implied.
Salles v. United States, 156 F.3d 1383, 1384 (Fed. Cir.
1998) (citing Landau, 886 F.2d at 324). On appeal, Liber-
ty does not argue that Lt. Col. Dean had express actual
authority to enter the NDA, but only that he had implied
actual authority. An employee of the Government has
implied actual authority to enter an agreement only when
that authority is an “integral part of the duties assigned
to [the] government employee.” Landau, 886 F.2d at 324
(internal quotation marks omitted). Authority is integral
“when the government employee could not perform his or
her assigned tasks without such authority.” Flexfab, LLC
v. United States, 62 Fed. Cl. 139, 148 (2004), aff’d, 424
F.3d 1254 (Fed. Cir. 2005). Determination of one’s au-
thority to enter an NDA is a question of fact that we
review for clear error following a bench trial. See Mon-
arch Assur. P.L.C. v. United States, 244 F.3d 1356, 1362
(Fed. Cir. 2001); City of El Centro v. United States,
922 F.2d 816, 819–21 (Fed. Cir. 1990); see also Moriarty v.
Glueckert Funeral Home, Ltd., 155 F.3d 859, 864 (7th Cir.
1998); In re Nelson, 761 F.2d 1320, 1322 (9th Cir. 1985).
The trial court’s determination that Lt. Col. Dean did
not have implied actual authority is not clearly erroneous.
As the Chief of Small Arms of DCS, Lt. Col. Dean testified
that he met “literally on a weekly basis” with representa-
LIBERTY AMMUNITION, INC. v. US 23

tives from industry interested in pitching a product or
idea to the Government. J.A. 10129 l. 21. Although many
of the representatives with whom he met marked their
materials confidential, Lt. Col. Dean also testified that he
signed “very few” NDAs. J.A. 10131 l. 3. He clarified this
statement to mean that he signed fewer than five NDAs
in over two years working for the DCD at Fort Benning.
Id. ll. 4–5. The infrequency with which Lt. Col. Dean
signed NDAs supports the notion that Lt. Col. Dean could
perform his tasks as Chief of Small Arms without signing
NDAs. Thus, there is support for the trial court’s deter-
mination that signing NDAs was not integral to
Lt. Col. Dean’s position.
Liberty agrees that whether authority is integral to
one’s position is the correct legal standard for implied
actual authority and that the trial court recited this
standard. Liberty argues instead that the trial court
misapplied the standard by looking to evidence that went
to express actual authority rather than implied actual
authority. Although the trial court did consider some
evidence more probative to show Lt. Col. Dean’s lack of
express authority, it also considered Lt. Col. Dean’s
testimony regarding the relatively small number of NDAs
he signed. Trial Ct. Op., 119 Fed. Cl. at 404. This evi-
dence alone is sufficient to support the trial court’s con-
clusion that Lt. Col. Dean lacked implied actual authority
to bind the Government to an NDA with Liberty under
the clearly erroneous standard of review we apply for this
issue.
CONCLUSION
For the foregoing reasons, we hold that the trial court
erred when construing the “intermediate opposite ends”
and “reduced area of conduct” claim terms and reverse its
holding that the Government practiced the asserted
claims of the ’325 patent and vacate its award of damages.
We affirm the trial court’s holding that Liberty cannot
24 LIBERTY AMMUNITION, INC. v. US

prevail on its breach of contract claim because the trial
court’s determination that Lt. Col. Dean lacked the requi-
site authority to enter an NDA on the Government’s
behalf is not clearly erroneous.
REVERSED-IN-PART, VACATED-IN-PART,
AFFIRMED-IN-PART
COSTS
No costs.
 United States Court of Appeals
for the Federal Circuit
______________________

LIBERTY AMMUNITION, INC.,
Plaintiff-Cross-Appellant

v.

UNITED STATES,
Defendant-Appellant
______________________

2015-5057, 2015-5061
______________________

Appeals from the United States Court of Federal
Claims in No. 1:11-cv-00084-CFL, Judge Charles F.
Lettow.
______________________

NEWMAN, Circuit Judge, concurring in part, dissenting in
part.
The court today holds that the United States is not
contractually bound by a nondisclosure agreement signed
for the “United States Government, Department of De-
fense,” by Lieutenant Colonel (then Major) Glenn Dean, 1
in his position as Chief of the Small Arms Branch of the
Directorate of Combat Development, United States Infan-
try. The purpose of the agreement was to receive disclo-

1 To conform with the government’s usage, we use
the rank of Lt. Col., without the precision of earlier or
later rank at any given time.
2 LIBERTY AMMUNITION, INC. v. US

sure of proprietary information concerning the new am-
munition invented by Mr. P.J. Marx.
Lt. Col. Dean testified in the Court of Federal Claims
that he was the United States official responsible for this
subject matter, and that he had signed “about five” non-
disclosure agreements in that role as Chief for small arms
development. My colleagues hold that the United States
is not bound by this agreement, finding that Lt. Col. Dean
had no authority, either express or implied, to sign such
agreements. There is no evidentiary support for this
holding; indeed, even now the United States does not
appear to have criticized or reprimanded Lt. Col. Dean,
despite the government’s insistence that he acted improp-
erly and that his contractual promise is meaningless.
Law and precedent establish that Lt. Col. Dean’s im-
plicit authority sufficed to provide a valid nondisclosure
agreement. The government’s position is not only contra-
ry to law and precedent—it is also untenable as a matter
of the integrity of government practice.
On the merits of the issue of infringement of the Lib-
erty Ammunition U.S. Patent No. 7,748,325 (the ’325
patent), I agree with the court that the claims are not
literally infringed by the Army’s design of rounds in which
the base of the projectile is completely “jacketed” by the
interface.
THE NONDISCLOSURE AGREEMENT
Several nondisclosure agreements were signed by var-
ious government representatives in order to receive Mr.
Marx’s technology. This case focuses primarily on the
agreement signed by Lt. Col. Dean for the Department of
Defense. 2 The government argues, successfully, that Lt.

2 The U.S. Special Forces Command representative
also entered into a nondisclosure agreement with Mr.
LIBERTY AMMUNITION, INC. v. US 3

Col. Dean had no authority to enter into a nondisclosure
agreement, and therefore that the agreement was void.
The government’s position appears to be that it is entitled
to disclose outside the government and use Mr. Marx’s
proprietary information without obligation or license.
In brief background: Mr. Marx developed experi-
mental ammunition in response to the Army’s announced
request for industrial assistance to develop improved
ammunition and to comply with the “Green Ammunition
Program” to remove lead on environmental grounds.
Witnesses testified that early attempts to resolve these
concerns by substituting tungsten for lead were expensive
and ineffective. The record shows multiple failures until
receipt and review of the Marx technology provided the
successful direction.
Mr. Marx, in undisputed testimony, explained that he
was directed to Lt. Col. Dean at the Directorate of Combat
Development (DCD) by the Project Management Engineer
for the Green Ammunition Program. Trial Tr. at 351, ll.
1–3, Liberty Ammunition v. United States, 119 Fed. Cl.
368 (2014) (Dkt. 76). Mr. Marx testified that the Project
Management Engineer stated that while he lacked the
authority to sign an NDA, Lt. Col. Dean was authorized to
execute such agreements. Id.
Prior to meeting with Lt. Col. Dean, Mr. Marx re-
quested information on the government’s “procedure for
receiving proprietary information,” and asked if the
government had a “standard agreement of nondisclosure.”
Trial Tr. at Ex. 5 (Dkt. 74) (Email exchange between Maj.
Glenn Dean and P.J. Marx (November 18, 2004)). Lt. Col.
Dean assured Mr. Marx that “[w]e’ll protect and secure

Marx. This Command awarded Marx a development
contract for other projectiles. Such projectiles are not
here at issue.
4 LIBERTY AMMUNITION, INC. v. US

anything you mark as proprietary information” and that
if Mr. Marx had a nondisclosure agreement, “we can have
anyone who would be in contact with specifics sign.” Id.
After Lt. Col. Dean executed the “Bilateral Non-
Disclosure Agreement” on behalf of the “United States
Government, Department of Defense,” id. at Ex. 3, Mr.
Marx provided the technical description, test information,
and fifty sample rounds of his new ammunition. After
receiving this information, Lt. Col. Dean reported to other
Army research divisions that the Marx projectile is a
“very promising technology that lines up well with our
lethality improvement effort.” Id. at Ex. 8 (Email from
Maj. Glenn Dean (Feb. 17, 2005)).
Lt. Col. Dean testified in the Court of Federal Claims
that the Directorate of Combat Development is the “lead
combat developer for all infantry and soldier systems.”
Trial Tr. at 46, ll. 5–6 (Dkt. 74). He testified that his
assignment as Chief of the Small Arms Branch is to
identify and develop new and improved technologies, and
to work in collaboration with private industry. Id. at 48.
However, the government now argues, and my colleagues
agree, that Lt. Col. Dean had neither express actual
authority nor implicit actual authority to sign the nondis-
closure agreement.
Precedent distinguishes among actual authority, im-
plied actual authority, and apparent authority of govern-
ment representatives. The panel majority recognizes that
authority of government officials “is generally implied
when such authority is considered to be an integral part
of the duties assigned to a government employee,” H.
Landau & Co. v. United States, 886 F.2d 322, 324 (1989),
“when the government employee could not perform his or
her assigned tasks without such authority,” Flexfab, LLC
v. United States, 62 Fed. Cl. 139, 148 (2004), aff’d 424
F.3d 1254 (Fed. Cir. 2005). In H.F. Allen Orchards v.
United States, 749 F.2d 1571, 1575 (Fed. Cir. 1984), the
LIBERTY AMMUNITION, INC. v. US 5

court explained that “[a]lthough apparent authority will
not suffice to hold the government bound by the acts of its
agents, implied actual authority, like expressed actual
authority, will suffice.” See also Fifth Third Bd. of W.
Ohio v. United States, 402 F.3d 1221, 1235 (Fed. Cir.
2009) (government representative had implied actual
authority, and bound the government); Phila. Suburban
Corp. v. United States, 217 Ct. Cl. 705, 707 (1978) (gov-
ernment is bound when the signing government official
has implied authority or ratification).
The record contains extensive evidence that the re-
ceipt and protection of proprietary information from the
private sector was integral to Lt. Col. Dean’s position as
Chief of the Small Arms Branch. He testified that he met
“literally on a weekly basis” with industry representatives
with a product or idea related to small arms. Trial Tr. at
129, l. 21–130, l. 3 (Dkt. 74) (“I mean literally on a weekly
basis would have some company, contractor, person who
had a good idea, a product they wanted to sell, who would
come into my office . . . and give us their pitch on here’s
our great idea and here’s why the U.S. Army should buy it
and here’s why you specifically should give us a require-
ment to allow the PM to buy our product.”).
Lt. Col. Dean estimated that these industry meetings
alone consumed eight hours each week. Id. at 130, ll. 8-9.
He testified that he served as the “user representative” in
evaluating technology needs, the possibilities of new
technologies, and deciding whether they would benefit
soldiers in the field. Id. at 48. He testified that he had
signed nondisclosure agreements in the past. Id. at 66, l.
3. When asked if he had ever refused to sign a nondisclo-
sure agreement, Lt. Col. Dean responded “Not to my
knowledge.” Id. at 66, l. 5. Lt. Col. Dean also testified
that it was “common” to receive proprietary information.
Id. at 130, ll. 21-23. Other Directorate witnesses testified
to the “policy” of the Small Arms Branch “to protect the
privacy of the information provided” by industry repre-
6 LIBERTY AMMUNITION, INC. v. US

sentatives. Trial Tr. at 500, ll. 13–15 (Dkt. 76). No
witness identified any other individual or entity with the
authority to enter into nondisclosure agreements related
to the Small Arms Branch responsibilities. See, e.g., Trial
Tr. at 131, l. 25–132, l. 1 (Dkt. 74) (Testimony of Lt. Col.
Dean) (“[T]he business development activity was—I never
saw a contracting officer involved with that.”). Despite
this extensive record, and no contrary evidence, the
government’s position is that this agreement, by the
officer of the United States charged with the responsibil-
ity of advancing small arms development, is worthless—
and my colleagues on this panel agree.
The majority holds that because Lt. Col. Dean signed
less than five nondisclosure agreements over his two
years at the Directorate, he lacked authority to bind the
government to a nondisclosure agreement with Liberty.
Maj. Op. at 23. Does this mean that if an industry repre-
sentative offers information under a nondisclosure
agreement, and the government official agrees and signs
the agreement, the industry representative must inquire
how many nondisclosure agreements that official had
previously signed, and then guess how many would be
needed to support the official’s asserted authority?
The Court of Federal Claims relied additionally on Lt.
Col. Dean’s lack of formal “contracting officer” status. A
contracting officer “obligate[s] the Government to an
expenditure of appropriated funds.” 48 C.F.R. §§ 1.602,
2.101. Nondisclosure agreements need not incur expendi-
ture; the issue here is disclosure of information, not
expenditure. Lt. Col. Dean testified that contracting
officers were “never” involved in proprietary business
development meetings with industry. Trial Tr. at 131, l.
25–132, l. 1 (Dkt. 74). Also, precedent establishes that
lack of a contracting officer’s signature on a contract with
the government does not foreclose a breach of contract
claim if implied authority was present. Phila. Suburban
Corp., 217 Ct. Cl. at 707.
LIBERTY AMMUNITION, INC. v. US 7

Thus I must, respectfully, dissent from the court’s rul-
ing that the government is not bound by the nondisclosure
agreement signed by its representative.
LIABILITY
The Court of Federal Claims held the ’325 patent val-
id, and infringed by the A1 modifications of the M855 and
M80 projectiles. My colleagues hold that the patent is not
infringed. I agree that the patent is not infringed by
these A1 projectiles, for it was undisputed that the entire
base of the A1 projectile is enclosed or “jacketed,” unlike
the claimed ’325 projectile. The ’325 claims require that
the metal interface does not enclose the base of the projec-
tile. Thus I join the court’s ruling of non-infringement.
There was evidence that the Marx invention showed
the way to the design of the M855A1. Dr. Newill, who
was the “Technical Lead” of the Green Ammunition
Program, a few months after receiving the Marx technolo-
gy advised the Army that the problems of both lethality
and the environment had been solved, referring to the A1
modification. At trial, Dr. Newill could not point to any
laboratory documentation of independent origin of the
concepts embodied in the Marx projectile. Trial Tr. at
1466, ll. 18–20 (Dkt. 84). Liberty points out that there
were no entries in any government Laboratory Notebooks
(required by Army Regulation 27-60), and no drawings or
sketches or other evidence of conception. Id. at 1463–66.
Mr. Campion, who reviewed the Marx information for the
Special Services Command, confirmed that Marx led to
this breakthrough, testifying that “[t]hey’ve been develop-
ing the green round for 17 years now.” Trial Tr. at 999, ll.
7–8 (Dkt. 80). The government did not contradict these
witnesses.
These aspects warrant resolution in connection with
the disclosure conditions and to determine the conse-
quences of any breach of the nondisclosure contract. I
8 LIBERTY AMMUNITION, INC. v. US

would remand for this purpose. I respectfully dissent
from my colleagues’ disposition of this aspect.