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Michael Listner, Andrew Rush, Monday, 1-12-15 January 13, 2015

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Michael Listner, Andrew Rush, Monday, 1-12-15


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Guests:  Michael Listner, Andrew Rush.  Topics:  The legal news and proceedings regarding SpaceX challenges to the Blue Origin Sea Landing Patent & Air Force certification delays for SpaceX & SpaceX litigation in the block buy matter.  Please direct all comments and questions regarding Space Show programs/guest(s) to the Space Show blog, https://thespaceshow.wordpress.com.  Comments and questions should be relevant to the specific Space Show program. Written Transcripts of Space Show programs are a violation of our copyright and are not permitted without prior written consent, even if for your own use. We do not permit the commercial use of Space Show programs or any part thereof, nor do we permit editing, YouTube clips, or clips placed on other private channels & websites. Space Show programs can be quoted, but the quote must be cited or referenced using the proper citation format. Contact The Space Show for further information. In addition, please remember that your Amazon purchases can help support The Space Show/OGLF. See http://www.onegiantleapfoundation.org/amazon.htm.  For those listening to archives using live365.com and rating the programs, please email me as to why you assign a specific rating to the show. This will help me bring better programming to the audience.

We welcomed attorneys Michael Listner and Andrew Rush to the program to go behind the scenes to discuss the Blue Origin Sea Landing Patent which SpaceX is challenging given its goal of landing its first stage on a barge.  We also discussed the Air Force delaying SpaceX certification which may impact SpaceX bidding on the upcoming NRO launch contract & the SpaceX litigation challenging the block buy.  Note that Andrew Rush is a patent attorney so he led the discussion regarding the Blue patent in the first segment of our program.  In the first segment of our 1 hour 45 minute program, Michael and Andrew discussed the Blue Origin Sea Landing patent and the SpaceX challenge to it.  The discussion included some important facts and basics about U.S. and international patent law and  as you will hear, it can be quite different, along with the patent courts, than U.S. civil law.  Andrew went into detail about how broad the Sea Landing Patent is, the areas for challenge, the SpaceX position and more.  We also talked infringement penalties, the likelihood of settlement negotiations, and our guests even gave us their opinion as to the probable outcome of the challenge to the Blue Origin patent.  It is an excellent discussion of a complex issue of interest to all of us listening to this program.

In the second segment, Michael spent most of the time explaining the Air Force delay in SpaceX certification for national security and DOD satellite launches.  He also explained how this delay might adversely impact the ability of SpaceX to bid on the upcoming NRO launch contract.  Michael and Andrew discussed the latest news regarding the SpaceX litigation against the Air Force regarding the block buy, the motions that have been filed so far, what happens to those numerous motions, and the possible outcome for this litigation.  For both segments, listeners asked several questions pertaining to either the Blue patent or the SpaceX certification and block buy matter.

Please post your questions/comments on TSS blog above.  You can reach either guest through me. Andrew also has a blog you might want to follow, http://ipinspace.com.



1. Michael J. Listner - January 23, 2015
2. Michael J. Listner - January 23, 2015

It appears the Space X lawsuit against USAF has settled in mediation. More details forthcoming.

3. Kirk - January 19, 2015

Andrew, is it possible to patent technology covered by ITAR restrictions? Will the USTPO issue a patent but keep the particulars classified?

4. Michael J. Listner - January 14, 2015

There has been some movement in the complaint Space X brought against USAF. Here is a synopsis of the Order:

This Order is on the Motion to Dismiss filed by ULA on January 7, 2015. ULA is an Intervenor in this matter. The Motion to Dimiss was filed by ULA on January 7, 2015 and dealt with the enactment of the National Defense Authorization Act for Fiscal Year 2015, (“NDAA”). To put simply, the ULA motion asserts that the NDAA, which deals in part with the purchase of RD-180 engines or other engines from Russia, makes the Space X case moot. Judge Brayden denied the ULA Motion to Dismiss. The ULA Motion to Dismiss is still sealed, so I cannot read it for myself.

Apparently, USAF/DOJ has agreed to mediation, which is scheduled for this month. In her Order Judge Brayden noted that the USAF/DOJ still has two Motions to Dismiss pending, which have been fully briefed by both parties. She also noted that Space X filed a Motion For Judgment On The Administrative Record. Judge Brayden stated in her Order that she will not rule on these Motions until USAF/DOJ and Space X complete mediation.

DDAY - January 16, 2015

Is the mediation for the whole thing, or just one part? If they have agreed to mediation, why couldn’t she simply dismiss the other motions as irrelevant?

Or is she keeping the motions just in case mediation breaks down?

Michael J. Listner - January 17, 2015

Mediation is just a part of it. The courts these days encourage mediation to try and resolve a dispute before the judge makes a ruling. Here in New Hampshire, in some civil cases, mediation is mandatory at the state court level and is often encouraged at the state appellate level. Federal

It behooves USAF/DOJ to enter into mediation to show that they are making a good faith effort to resolve this dispute, and my sense is that Space X sees it as the only opportunity of getting launches out of the block buy other than through legislative action

Will mediation result in anything? My guess it will not. I still believe USAF/DOJ has a strong hand with its two Motions to Dismiss. Couple that with Mr. Musk’s inflammatory remarks in his Bloomberg interview this past week where he basically accused ULA and USAF of colluding to slow down certification, and I don’t expect mediation will result in anything tangible, but I could be wrong. That being said, there will be a couple of launches from the block buy that will be competed out as required under the NDAA.

Again, this is based on the limited information I have because everything is sealed except for pleadings filed and orders entered in the first few months of the case and this Order.

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