On June 21, 2017, Plaintiff, Acme Worldwide Enterprises, Inc., filed a patent infringement case against the U.S. Army and the U.S. Air Force in the U.S. Court of Federal Claims.  Industrial Smoke & Mirrors, Inc., the manufacturer of a machine gun recoil simulator at issue in the litigation used by the Army and Navy for training moved to intervene as a party defendant as of right or as in the alternative, permissive intervention. Although the Government did not oppose the motion to intervene, Acme did.

Under Rule 24 (a)(2), a moving party must show that its motion to intervene is timely, must claim a legally protectable interest, and must show that its interest is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent the interest. The Court concluded that Smoke & Mirrors had not met the requirements of intervention of right because it did not have a legally protectable interest in the property at issue, explaining that the movant was immune from liability for patent infringement. However, the Court granted Smoke & Mirrors permissive intervention, finding that the movant’s proposed defense shares a common question of law and fact, because it is the manufacturer of the product and therefore subject to a potential indemnification obligation (which courts consider sufficient to satisfy the requirements for permissive intervention).

Read Judge Sweeney’s full decision here.