Full opinion text
Concurring opinion filed by Circuit Judge GAJARSA. Separate concurring opinion filed by Circuit Judge DYK. Dissenting opinion filed by Senior Circuit Judge PLAGER. PER CURIAM. The United States appeals the order of the Court of Federal Claims holding that it could assert jurisdiction over Zoltek Corporation’s (“Zoltek”)’s patent infringement allegations by treating the action as a Fifth Amendment taking under the Tucker Act. Zoltek cross-appeals the trial court’s ruling that 28 U.S.C. § 1498(c) bars this action as arising in a foreign country. The Court of Federal Claims certified the rulings under 28 U.S.C. § 1292(d)(2), and this court accepted jurisdiction. See Zoltek Corp. v. United States, No. 96-166 C (Fed. Cl. Feb. 20, 2004) (certification); see generally Zoltek Corp. v. United States, 58 Fed.Cl. 688 (2003), Zoltek Corp. v. United States, 51 Fed.Cl. 829 (2002). We conclude that under § 1498, the United States is liable for the use of a method patent only when it practices every step of the claimed method in the United States. The court therefore affirms the trial court’s conclusion that § 1498 bars Zoltek’s claims. However, we reverse the trial court’s determination that it had jurisdiction under the Tucker Act based on a violation of the Fifth Amendment. I. Zoltek Corporation (“Zoltek”) is the as-signee of United States Reissue Patent No. 34,162 (reissued Jan. 19, 1993) to a “Controlled Surface Electrical Resistance Carbon Fiber Sheet Product” (“the Re T62 patent”). The Re ’162 patent claims certain methods of manufacturing carbon fiber sheets with controlled surface electrical resistivity. Independent claim 1 is representative. After reissue, it reads: 1. A method of manufacturing a plurality of different value controlled resistivity carbon fiber sheet products employing a carbonizable fiber starting-material; said method comprising selectively partially carbonizing previously oxidized and stabilized fiber starting material for a predetermined time period in an oxygen free atmosphere within a furnace at selected temperature values within a temperature range from 370 degrees Centigrade to about 1300 degrees Centigrade by soaking the stabilized fiber starting material at the selected temperature for the predetermined period of time to provide a preselected known volume electrical resistivity to the partially carbonized fibers corresponding to that volume electrical resistivity value required to provide the preselected desired surface resistance value for the finished sheet products, and thereafter processing the partially carbonized fibers into homogeneous carbon fiber sheet products having the preselected desired surface electrical resistances. Re ’162 patent, col. 8, ll. 42-66. The method thus takes a “carbonizable fiber starting material” and requires “partially carbonizing” it. “Carbonization” as used in the Re ’162 patent means “a process which involves heat treatment in an inert atmosphere which eliminates or removes all elements other than carbon.” Zoltek, 48 Fed.Cl. 290, 293 (2000). “Partial carbonization” refers to carbonization sufficient to achieve a desired surface resistance in a sheet woven from the resulting fibers. Id. at 295. Independent claim 11 describes a representative method for making such fibers and weaving them into a fiber sheet. After reissue, it reads: 11. A method of manufacturing a plurality of different value controlled resistivity carbon fiber sheet products employing carbonizable, previously oxidized and stabilized fiber starting material; said method comprising forming an oxidized and stabilized tow, stretching and breaking the stabilized tow, forming the stabilized stretched and broken fiber filaments into sliver comprised of, large bundles of discontinuous filaments in an untwisted condition, converting the sliver into roving, spinning the roving into a spun yarn, plying or twisting the spun yarn, weaving or knitting the plied and twisted spun yarn into fabric, and selectively partially carbonizing the fabric thus formed at preselected elevated temperature values for a predetermined time period in an oxygen free atmosphere within a furnace having a continuously increasing temperature profile within the range from about 370 degrees Centigrade to about 1300 degrees Centigrade to provide a known preselected electrical volume resistivity to the partially carbonized fiber filament in the fabric corresponding to that value of electrical volume resistivity required to provide the preselected desired surface resistance for the finished fabric. Re ’162 patent, col. 9, 1. 65 — col. 10, 1. 24. Independent claim 15 describes a method for making and processing the fibers into paper-like sheet products. Id. at col. 10, l. 35 — col. 11, l. 8. In short, the steps of the claimed methods are directed to “partially carbonizing” fibers, and weaving or processing them into controlled resistivity-carbon fiber mats or sheets. The relevant facts are undisputed. The United States contracted with Lockheed Martin Corporation (“Lockheed”) to design and build the F-22 fighter. Zoltek, 51 Fed.Cl. at 831. Lockheed subcontracted for two types of silicide fiber products that it uses in the aircraft. The first is a pre-impregnated material made from Ni-calon silicon carbide fibers. These fibers are partially carbonized and manufactured into sheets in Japan, which are then imported into the United States. The second is a silicide fiber mat made from Tyranno fibers. The Tyranno fibers are manufactured exclusively in Japan, but they are processed into mats in the United States. Zoltek, 58 Fed.Cl. at 690. Zoltek brought suit in the Court of Federal Claims under § 1498(a), alleging that the United States and Lockheed used the methods claimed in the Re ’162 patent when Lockheed’s subcontractors made the two silicide fiber products used in the F-22. Zoltek alleges that the mats and sheets were made, for the United States, using the claimed methods. The government moved for partial summary judgment that Zoltek’s § 1498(a) claims were barred by § 1498(c) because they arose in Japan. The trial court denied the motion. Although it agreed that § 1498(c) barred Zoltek’s claims under § 1498(a), the trial court directed Zoltek to amend its complaint to allege a taking under the Fifth Amendment. Id. at 707. The trial court concluded that Zoltek could assert the infringement claims under 28 U.S.C. § 1491(a)(1) as a taking in violation of the Fifth Amendment. Id. at 690-91 & 695-706. The trial court certified its § 1498 analysis and its holding that Zoltek’s patent infringement claims sounded in the Fifth Amendment, under § 1292(d)(2). Both parties timely sought permission to appeal. This court accepted the interlocutory appeals and has jurisdiction under 28 U.S.C. §§ 1292(c)(1) and 1295(a)(3). The issues before the court are purely questions of law. This court reviews the trial court’s statutory and constitutional analysis without deference. See Shoshone Indian Tribe of Wind River Reservation v. United States, 364 F.3d 1339, 1345 (Fed.Cir.2004). II. The federal government is immune from any legal action by its sovereign immunity. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (stating that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued”). The waiver of immunity can be limited and conditioned by the Congress. See United States v. Nordic Village Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (stating that the government’s consent to be sued must be strictly construed in favor of the sovereign and not enlarged beyond what the language requires). A patentee’s judicial recourse against the federal government, or its contractors, for patent infringement, is set forth and limited by the terms of 28 U.S.C. § 1498. Section 1498(a) provides, in pertinent part: Whenever an invention described in and covered by a patent of the United States is used ... 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. Id. (emphasis added). This court has held that “direct infringement under section 271(a) is a necessary predicate for government liability under section 1498.” NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1316 (Fed.Cir.2005) (citing Motorola, Inc. v. United States, 729 F.2d 765, 768 n. 3 (Fed.Cir.1984)). We have further held that “a process cannot be used ‘within’ the United States as required by section 271(a) unless each of the steps is performed within this country.” Id. at 1318. Consequently, where, as here, not all steps of a patented process have been performed in the United States, government liability does not exist pursuant to section 1498(a). We affirm the trial court’s conclusion that § 1498(a) bars Zoltek’s claims. III. We turn to the trial court’s takings analysis. The Court of Federal Claims held that Zoltek could bring its action against the government under the Tucker Act, by alleging that the infringement was a taking of private property for public use under the Fifth Amendment. See Zoltek, 58 Fed.Cl. at 707. We reverse. In Schillinger v. United States, 155 U.S. 163, 30 Ct.Cl. 480, 15 S.Ct. 85, 39 L.Ed. 108 (1894), the Supreme Court rejected an argument that a patentee could sue the government for patent infringement as a Fifth Amendment taking under the Tucker Act. Id. at 169, 15 S.Ct. 85. Schillinger remains the law. The trial court determined that the Supreme Court “effectively overruled Schillinger sub silentio ” in Crozier v. Fried. Krupp Aktiengesellschaft, 224 U.S. 290, 32 S.Ct. 488, 56 L.Ed. 771 (1912). Zoltek, 58 Fed.Cl. at 702. We disagree. The Court of Federal Claims, like this court, is bound by Schillinger, and the trial court rulings to the contrary are not viable. Crozier involved Army weapons manufacture. Fried. Krupp was a German corporation holding patents relating to improvements in guns and gun carriages. William Crozier was the Army Chief of Ordnance and directed the manufacture of field guns and carriages for the Army. In 1907, Fried. Krupp sued Crozier in the supreme court of the District of Columbia. The company alleged that the Army’s weapons manufacture was infringing Fried. Krupp patents. Although the complaint originally sought preliminary and permanent injunction, and an accounting, the company later dropped the prayer for preliminary injunction and waived the prayer for accounting. Crozier, 224 U.S. at 297-99, 32 S.Ct. 488. Crozier demurred, arguing that the real party in interest was the United States, and that the trial court lacked jurisdiction. Id. at 300, 32 S.Ct. 488. The trial court sustained the demurrer and dismissed. Id. In 1908, the Court of Appeals reversed. Id. Before the Supreme Court heard argument, Congress enacted the Patent Act of 1910. See Pub.L. No. 61-305, 36 Stat. 851 (1910) (later codified as amended at § 1498). When it eventually heard the case, the Supreme Court reversed and remanded with instructions to dismiss so that the company could refile and proceed in the Court of Claims under the 1910 Act. Crozier, 224 U.S. at 309, 32 S.Ct. 488. The contention that Crozier somehow overruled Schillinger, and recognized patent infringement as a Fifth Amendment taking, is flawed. The only question before the Supreme Court was whether the trial court had jurisdiction to enjoin the government from alleged patent infringement. Because Congress, in adopting the 1910 Act, precluded injunctive relief against the government for patent infringement, the Crozier court concluded that the trial court lacked the power to grant Fried. Krupp the injunctive relief it was seeking. Id. at 308, 32 S.Ct. 488. None of the relevant Schillinger issues were joined: Crozier was not filed in the Court of Claims, had nothing to do with the Tucker Act, did not allege a taking, and was solely in equity. Moreover, discussing the state of the law before the 1910 Act, the Crozier court expressly noted that no patent infringement action could be brought against the government unless in the Court of Claims under a contract or implied contract theory. See id. at 304, 32 S.Ct. 488. Far from “overruling” Schillinger, this acknowledges and endorses the rule that Schillinger established. The Court thus recognized that by enacting the 1910 Act, Congress “add[ed] the right to sue the United States in the court of claims” for patent infringement. Id. If the right already existed under the Fifth Amendment, as the trial court here suggests, then this analysis in Crozier would be flawed. Indeed, the Supreme Court repeated this characterization of the 1910 Act just eight years later. See William Cramp & Sons Ship & Engine Bldg. Co. v. Int’l Curtis Marine Turbine Co., 246 U.S. 28, 41, 38 S.Ct. 271, 62 L.Ed. 560 (1918) (citing Schillinger and explaining that the 1910 Act “was intended alone to provide for the discrepancy resulting from the right in one case to sue on the implied contract and the non-existence of a right to sue” for infringement). In Crozier and Cramp, the Supreme Court therefore acknowledged Congressional recognition that the Court of Claims lacked Tucker Act jurisdiction over infringement under a takings theory. The legislative history of the 1910 Act confirms that the statute augmented the Court of Claims’ Tucker Act jurisdiction by providing jurisdiction over the tort of patent infringement. See H.R.Rep. No. 61-1288 at 3 (1910). The Court of Federal Claims reasoned that because Crozier discussed the 1910 Act in terms of eminent domain, the Supreme Court must have reconsidered its analysis in Schillinger. This reasoning is misplaced. It is true that Crozier, and several cases applying the 1910 Act (in its original form and as amended and recodi-fied at § 1498), analyze the statute in terms of takings and protecting property rights. Under this case law, patent infringement by the government is analogized to “taking” a “compulsory license.” The view is consistent with the text of the 1910 Act, which provided for reasonable compensation for patent infringement, 36 Stat. 851, and with the legislative history, which provided that the purpose of the bill was “to enlarge the jurisdiction of the Court of Claims so that said court may entertain suits against the United States for the infringement or unauthorized use of a patented invention, in certain cases, and award reasonable compensation to the owner of the patent.” H.R.Rep. No. 61-1288, at 1 (1910). But when interpreting the Constitution “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803). That Congress may adopt a limited waiver of sovereign immunity and confer rights on patentees for money damages against the government, whatever the rationale, cannot disturb the Supreme Court’s analysis of the Fifth Amendment in Schillinger. Neither the wording nor rationale of the 1910 Act, nor the Supreme Court’s discussion of it in Crozier, affects the rule in Schillinger. Of course, the 1910 Act was not even before the Crozier court, as the action was filed three years before the Act was enacted. Even the plain language of the 1910 Act — entitled “An Act To Provide Additional Protection For Owners of Patents of the United States” — belies the trial court’s analysis here, as it legislates against the background of the Schillinger legal framework. In sum, the trial court’s conclusion that Crozier “effectively overruled Schillinger sub silentio” has no merit. The trial court’s remaining conjectures on takings jurisprudence do not require consideration. We simply note that to reach its conclusion the Court of Federal Claims had to read an entire statute, § 1498, out of existence — a result that betrays the error in the trial court’s analysis. As the Supreme Court has clearly recognized when considering Fifth Amendment taking allegations, “property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (citations omitted). Here, the patent rights are a creature of federal law. In response to Schillinger, Congress provided a specific sovereign immunity waiver for a patentee to recover for infringement by the government. Had Congress intended to clarify the dimensions of the patent rights as property interests under the Fifth Amendment, there would have been no need for the new and limited sovereign immunity waiver. The manner in which Congress responded to Schillinger is significant. “The life of the law has not been logic; it has been experience.” Neither the Court of Federal Claims nor this court can ignore the path of the patent law as it has evolved under § 1498. The dissent argues that we are wrong to conclude that Schillinger remains good law. Both inverse condemnation claims and regulatory takings claims, it asserts, are currently viewed as claims founded upon the Fifth Amendment of the Constitution for purposes of the Tucker Act, and these claims are not barred for having arisen in tort. If, as the dissent argues is suggested by Crazier, a patent is a type of property that comes within the ambit of Fifth Amendment Takings Clause protection, why should we not likewise permit claims for patent infringement to arise under the Tucker Act? The answer is simple. Unlike regulatory takings and the inverse condemnation of real property, the “taking” of a license to use a patent creates a cause of action under § 1498. The dissent fails to appreciate that this destroys whatever force its argument by analogy may otherwise have had. Indeed, if we were to interpret § 1491 as the dissent would have us, it would render superfluous § 1498 — the remedy that Congress fashioned specifically to compensate patentees for the use of their patents by the federal government. Moreover, even if we shared the dissent’s belief that the Supreme Court would overrule Schillinger, we are nevertheless bound by its holding. It is not our place to overrule sub silentio the Supreme Court. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”). In sum, the trial court erred in finding that Zoltek could allege patent infringement as a Fifth Amendment taking under the Tucker Act, and we reverse. IV. For the reasons set forth herein, we affirm the trial court’s conclusion that the infringement allegations at bar are precluded by § 1498(a). We reverse the trial court’s ruling that Zoltek can allege patent infringement as a Fifth Amendment taking under the Tucker Act. We remand for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, and REMANDED. Each side will bear its own costs. . Although the Re '162 patent also includes various product-by-process and product claims, only the method claims are at issue here. In a March 5, 2001 motion for leave to file a first amended complaint, Zoltek abandoned its allegations that the government had infringed the product claims. See Zoltek, 58 Fed.Cl. at 689 n. 3. . As the Supreme Court recognized at least as long ago as 1881, the patentee’s recourse for infringement by the government is limited by the scope of the waiver of sovereign immunity established by the Congressional consent to be sued. “If the jurisdiction of the Court of Claims should not be finally sustained [to hear an infringement action against the government], the only remedy against the United States, unless Congress enlarges the jurisdiction of that court, would be to apply to Congress itself.” James v. Campbell, 104 U.S. 356, 359, 26 L.Ed. 786 (1881). In short, the power to limit a Congressional abuse of sovereign immunity lies in the political process rather than the judicial branch. . In Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984), the Court concluded that government interference with interests “cognizable as trade-secret property right[s]” could constitute a talcing depending on the circumstances. But Monsanto did not overrule Schillinger, and we must follow Schillinger until it is overruled by the Supreme Court, whether or not Schillinger is viewed as inconsistent with Monsanto. See Indep. Ink, Inc. v. Ill. Tool Works, Inc., 396 F.3d 1342, 1351 (Fed.Cir.2005), cert. granted, — U.S. -, 125 S.Ct 2937, 162 L.Ed.2d 865 (2005). . Oliver W. Holmes, The Common Law 5 (M. Howe ed.1963) (1881).
GAJARSA, Circuit Judge, concurring. I agree that we are bound by our panel decision in NTP, Inc. v. Research in Motion, Ltd., in which we held that “direct infringement under section 271(a) is a necessary predicate for government liability under section 1498.” 418 F.3d 1282, 1316 (Fed.Cir.2005) (citing Motorola, Inc. v. United States, 729 F.2d 765, 768 n. 3 (Fed.Cir.1984)). However, the NTP proposition is, in my view, the result of an unchecked propagation of error in our case law, and its viability may eventually be challenged. Consequently, I write separately to emphasize that our decision today does not depend for its validity on NTP, as it is also supported by an independent line of reasoning. I. Before discussing this additional basis for today’s decision, I shall briefly address the ignoble history of the NTP proposition. An examination of the case law reveals that the proposition has its roots in Decca v. United States, in which we held that the United States could be liable under 28 U.S.C. § 1498 only for direct infringement and not for indirect infringement: Section 1498 expressly waives the Government’s sovereign immunity only with respect to governmental direct infringement of a patent. Nowhere in the section is active inducement of infringement or contributory infringement mentioned, either directly or by cross-reference to 35 U.S.C. §§ 271(b) and (c). A waiver of sovereign immunity must be strictly construed. Stated differently, the Government is not to be regarded as having-waived its sovereign immunity by implication. 225 Ct.Cl. 326, 340, 640 F.2d 1156 (Ct.Cl.1980). Thus, after Decca, a patentee who sought to establish a § 1498(a) claim had to prove “direct” infringement by the United States. I have no problem with this formulation of the rule, as it was the product of the Decca court’s thoughtful analysis. It is important to note, however, the relationship between the phrases “direct infringement,” as used in Decca, id., and the phrase “direct infringement under § 271(a)” as used in NTP, 418 F.3d at 1316. That relationship is one of set to subset: infringement under 35 U.S.C. § 271(a) is a specific kind of “direct infringement.” Thus, while “direct infringement” is one of the requirements of an action against a private party under § 271(a), it is not the only requirement, with § 271(a) also requiring, inter alia, that the infringing activity occur “within the United States.” Decca, of course, did not require that a § 1498(a) plaintiff satisfy all of the requirements of § 271(a). Indeed, Decca did not even mention § 271(a). Instead, it required only that the accused use constitute a direct, rather than an indirect, infringement. NTP, in contrast, states as a blanket proposition that all of the requirements of 35 U.S.C. § 271(a) must be satisfied in order to prove a 28 U.S.C. § 1498 claim against the government. See NTP, 418 F.3d at 1316. How did such a sweeping generalization evolve from Decca? The answer, unfortunately, is that its evolution owes to this court’s imprecise recharacterization of the Decca holding in our decision in Motorola. See 729 F.2d 765, 768 n. 3. In Motorola^ this court cited Decca at the end of a footnote as one of a number of cases supporting the very general proposition that the patent statutes are often inapplicable to actions arising under section 1498. Id. It stated that “the Government can only be sued for any direct infringement of a patent (35 U.S.C. § 271(a)), and not for inducing infringement by another (section 271(b)) or for contributory infringement (section 271(c)).” Id. (emphasis added) (citing Decca, 640 F.2d at 1167). By equating the specific statutory provision “35 U.S.C. § 271(a)” with the more general concept of “direct infringement,” the Motorola court carelessly extended the Decca holding, thus laying the groundwork for the NTP proposition. There is distinct irony in the Motorola court’s being responsible for the creation of an inadvertent link between 35 U.S.C. § 271(a) and 28 U.S.C. § 1498(a), given that the entire point of the Motorola footnote was to support the proposition that it is erroneous to simply assume the existence of relationships between these two statutory sections. See id. at 768 (explaining that “[ajlthough a section 1498 action may be similar to a Title 35 action, it is nonetheless only parallel and not identical”). Although in Motorola the relationship between sections 271(a) and 1498(a) constituted mere dicta, in NTP the relationship, as slightly recast, became the binding precedent of this court. In my view, such a sweeping rule of binding precedent ought not to be created by mere inadvertence. In turn, the resolution of the important issue before this court today — the scope of the government’s waiver of sovereign immunity as embodied in § 1498— ought not to be based solely on the basis of NTP. In his concurring opinion, Judge Dyk attempts to find support for the NTP proposition. Citing certain legislative materials which state that the sole purpose of enacting § 1498(a) was to create jurisdiction (rather than additional liability), he argues that § 1498(a), even when viewed apart from 1498(c), cannot result in “the government’s liability [being] broader than that of private parties.” Id. In other words, according to his concurrence the limits of government liability under § 1498(a) are circumscribed by the hypothetical liability of a private actor under § 271(a), and we can entirely ignore § 1498(c) in the analysis. His reliance on legislative history is misplaced, however, given that the plain language of the text demands a contrary and unambiguous interpretation. As is explained below, the plain language of the statute reveals that 28 U.S.C. § 1498 is not a mere waiver of sovereign immunity with respect to the previously-existing remedy, which was provided by 35 U.S.C. § 281 for transgressions denominated by § 271 as “infringing” the exclusionary rights granted by § 154(a). There can be little doubt that § 1498 is more than a mere waiver of sovereign immunity. The plain language of the statute speaks of the provision of a “remedy,” and the fourth paragraph of subsection (a) indicates that “remedy” means “right of action.” See id. (“[This section shall not convey a right of action on any patentee ... with respect to any invention discovered ... while in the employment ... of the United States .... ”]) (emphasis added). Section 1498 is by no means a mere jurisdictional statute, and to the extent that materials in the legislative history may appear to suggest otherwise, they serve principally to illustrate why courts should often view legislative history with skepticism and rely on it only when the statute itself is ambiguous. If the NTP proposition can be sustained, it cannot be sustained on this ground. Granted, in creating a new remedy, § 1498(a) inherently creates new rights. However, there is nothing about the text of § 1498(a) that either suggests or requires the existence of any substantive or conceptual link between these rights and remedies and those provided by the patent laws (pursuant to 35 U.S.C. §§ 154(a) and 281, respectively). The independence of these two sets of rights and remedies results from § 1498(a) conditioning the availability of a remedy (and the inherent creation of a corresponding right) only on the “invention [being] described in and covered by a patent” (emphasis added) and the invention’s being “used or manufactured by or for the United States without license of the owner thereof or lawful right .... ” (emphasis added). The “coverage” provided by a patent is, of course, defined by the scope of its claims. See, e.g., Johnson & Johnston Assocs. v. R.E. Serv. Co., 285 F.3d 1046, 1052 (Fed.Cir.2002) (expounding on the “fundamental principle that claims define the scope of patent protection”); see also SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 (Fed.Cir.1985) (“It is the claims that measure the invention.” (citing Aro Mfg. Co., Inc. v. Convertible Top Replacement Co., Inc., 365 U.S. 336, 339, 81 S.Ct. 599, 5 L.Ed.2d 592 (1961))). Accordingly, a § 1498 right and remedy exist whenever an accused embodiment, used or manufactured by or for the government, falls within the scope of the patent claims as properly construed. The “coverage” inquiry is independent of the nature and identity of the Title 35 rights that might have been avail- _ able against a private infringer under the same circumstances. Indeed, prior to the passage of § 1498(c), the remedy created by § 1498(a) was broader than that available against private parties in some instances. Again, the plain text of subsection (a) makes this clear. Whereas § 271(a) contains a territoriality restriction, § 1498(a) contains none. Indeed, if § 1498(a) had not created a cause of action against the government that was broader, with respect to overseas infringement, than that available against a private infringer, then it is difficult to understand the purpose of § 1498(c) — a subsection specifically barring § 1498 claims that “aris[e] in a foreign country.” In summary, patentees have the following rights and remedies: (1) a 35 U.S.C. § 281/271 remedy (for which neither 28 U.S.C. § 1498(a) nor any other statute provides a waiver of sovereign immunity) for transgression of rights granted by 35 U.S.C. § 154, and (2) a 28 U.S.C. § 1498 remedy (assertable against the federal government) for transgressions of an inherently-defined right to be compensated for government manufacture or use of inventions covered by patents. Because § 1498(a) created new and independent rights and remedies, rather than merely waiving sovereign immunity with respect to an old remedy (i.e. § 281), one cannot argue that § 1498(a) a priori requires § 271(a) as an underlying and predicate cause of action. In fact, not even NTP posited a relationship specifically between § 271(a) and § 1498, subsection (a). Rather the articulated relationship — the so-called “NTP proposition” — is between § 271(a) and § 1498 as a whole. See NTP, 418 F.3d at 1316 (holding that “direct infringement under section 271(a) is a necessary predicate for government liability under section 1498”). Not even NTP requires us to ignore the importance of § 1498, subsection (c), as Judge Dyk urges us to do in his concurrence. I should explain that the per curiam opinion — which I join — does indeed state that the government’s “liability does not exist pursuant to § 1498(a)” and that “1498(a) bars Zoltek’s claims.” (emphasis added). However, this usage simply reflects the fact that subsection (a) creates the cause of action. Consequently, liability — if not precluded by subsection (c)— must arise pursuant to subsection (a). The court’s opinion today in no way endorses the view that subsection (c) is irrelevant, although we clearly do acknowledge the precedential effect of the NTP proposition, as articulated by the NTP court. Judge Dyk’s concurrence advances a second argument in support of the NTP proposition, namely that § 1498(a) was intended to be the “exact equivalent” of § 271(a), citing for support Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 343, 48 S.Ct. 194, 72 L.Ed. 303 (1927). A careful reading of that case reveals, however, that the Court made no such pronouncement. Richmond Screw was a case about the assignability of patent claims. The backdrop was Rev. Stat. § 3477, which forbade inter alia the assignment of patent infringement claims against the United States that had not been reduced to judgment. Thus, under § 1498(a), as it existed prior to amendment in 1918, when a government contractor infringed a patent, the patent owner had both an assignable right of action against the contractor under § 271(a) and a claim against the government pursuant to § 1498(a), with the latter being nonassignable pursuant to Rev. Stat. § 3477. The 1918 amendments to § 1498 eliminated the remedy against the contractor pursuant to § 271(a), confining the paten-tee to a suit against the government for his entire compensation. See Pub.L. No. 65-182, 40 Stat. 704, 705 (1918). The salient question was what would become of assigned claims against the contractor. Did Rev. Stat. § 3477, which barred the assignment of claims against the United States, prevent the assignee of a § 271(a) claim against a government contractor from pursuing a 1498(a) claim against the government pursuant to the 1918 Amendment? Troubled by the possibility of the 1918 Act effecting an uncompensated taking under the Fifth Amendment, the Court held that § 3477 did not apply “to the assignment of a claim against the United States which is created by the Act of 1918 in so far as the Act deprives the owner of the patent of a remedy against the infringing private contractor for infringements thereof and makes the Government indem-nitor for its ... infringements.” Richmond Screw, 275 U.S. at 346, 48 S.Ct. 194. Contrary to Judge Dyk’s reading, the Court did not assert a blanket proposition that § 1498(a) must be viewed as being coextensive in all respects with § 271(a). It is true that the Court said, as quoted in his concurrence, that “[w]e must presume that Congress in the passage of the Act of 1918 intended to secure to the owner of the patent the exact equivalent of what it was taking away from him.” (emphasis added). The concurring opinion appears to assume — incorrectly—-that “what it is taking away” refers to § 271(a) as a whole, leading Judge Dyk to conclude that the Act of 1918 (constituting § 1498, as amended) is “the exact equivalent” of § 271(a). However, the Court tells us what it was referring to by the words “what it was taking away,” and it was not referring to § 271(a) rights globally. Rather, it was referring — narrowly—to the assignability of rights pursuant to § 271(a). The next two sentences of the quoted passage, which the concurrence omits, make this point clear. We must presume that Congress in the passage of the Act of 1918 intended to secure to the owner of the patent the exact equivalent of what it was taking away from him. It was taking away his assignable claims against the contractor for the latter’s infringement of his patent. The assignability of such claims was an important element in their value and a matter to be taken into account in providing for their just equivalent. Id. at 345, 48 S.Ct. 194 (emphasis added). In its careful — and restrictive — analysis the Supreme Court actually declined the opportunity to articulate a broad, sweeping relation between § 271(a) and § 1498. The NTP court should not have articulated such a relationship, especially not through reliance on logically flawed dicta, and I can see neither the need nor the clear basis for us — at least in this case — to attempt to support through logic, post hoc, what the NTP court has wrought through folly. Perhaps the NTP proposition will in the future gain recognition as a useful expedient against the backdrop of a more thoroughly interpreted § 1498. For now, however, I view the proposition as being no more than an inadvertent leap of faith from the specific to the general. Accordingly, while I join the court’s opinion— recognizing that NTP binds us — my confidence that we are reaching the just and logical outcome stems not from it, but from the following analysis. II. I believe that this ease poses two substantial questions of statutory interpretation. First, when is a patented method “used” under § 1498(a)? Second, does an infringement action “arise[] in a foreign country” under § 1498(c) if some steps of a claimed method are practiced abroad? I conclude that a party “uses” a method claim within § 1498(a) only when it practices every step of the claimed method. Furthermore, an action for an infringing use of a patented method “arises in a foreign country” under § 1498(c) whenever any claimed step is practiced abroad. I would therefore have affirmed the trial court’s conclusion that § 1498 bars Zol-tek’s claims, even if we were not compelled to recognize NTP as precedent. Section 1498 provides, in relevant part: Whenever an invention described in and covered by a patent of the United States is used ... 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.... For the purposes of this section, the use ... 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 ... for the United States. 28 U.S.C. § 1498(a) (2000) (emphases added). At § 1498(c), Congress further limited the scope of claims under § 1498(a) with a foreign country exception. That limitation provides: The provisions of this section shall not apply to any claim arising in a foreign country. 28 U.S.C. § 1498(c) (2000). Both sections require interpretation. First, the court must determine the meaning of a “use,” as applied to a method claim, in § 1498(a). Second, the court must determine when a claim “arises” in a foreign country under § 1498(c). The trial court complicated this analysis by collapsing the two steps together. Although the two sections must be construed in harmony to preserve the integrity of the statutory scheme, in the first instance the questions of “use” and “arising” are separable. I address each issue in turn. A. The court’s statutory analysis must give effect to Congress’s intent when enacting the statute. See Nat’l Labor Relations Bd. v. Lion Oil Co., 352 U.S. 282, 297, 77 S.Ct. 330, 1 L.Ed.2d 331 (1957) (observing that the court bears “a judicial responsibility to find that interpretation which can most fairly be said to be embedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested”); Doyon, Ltd. v. United States, 214 F.3d 1309, 1314 (Fed.Cir.2000). The analysis begins with the text of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); White v. Dep’t of Justice, 328 F.3d 1361, 1374 (Fed.Cir.2003). To fully understand the meaning of a statute, however, the court looks “not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.” Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990); accord Dunn v. Commodity Futures Trading Comm’n, 519 U.S. 465, 478, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997). In this case the text of § 1498(a) is silent on the test for “use” of a patented method. The specific problem is a question of degree. In particular, one must decide whether “use” means practicing some steps of a claimed method, or instead requires practicing every claimed step. At the outset I note that it is well-settled, as a matter of patent law, that an infringing use of a patented method requires practicing every step claimed in the method. See Smith & Nephew, Inc. v. Ethicon, Inc., 276 F.3d 1304, 1311 (Fed.Cir.2001) (“Infringement arises when all of the steps of a claimed method are performed[.]”); see also NTP, 418 F.3d at 1318 (“[A] process cannot be used ‘within’ the United States as required by section 271(a) unless each of the steps is performed within this country.”); accord Deepsouth Packing Co., Inc. v. Laitram Corp., 406 U.S. 518, 528, 92 S.Ct. 1700, 32 L.Ed.2d 273 (1972) (“[A] combination patent [asserted under § 271(a)] protects only against the operable assembly of the whole and not the manufacture of its parts.”). The rule applies the long-settled principle, more commonly phrased in terms of products and the elements of device claims, that infringement requires practicing each and every limitation of the asserted patent claim. See V-Formation, Inc. v. Benetton Group SpA, 401 F.3d 1307, 1312 (Fed.Cir.2005) (recognizing the black-letter law that an accused product infringes a patent claim only if each and every limitation in the claim appears in the accused product); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 796 (Fed.Cir.1990) (“To establish infringement of a patent, every limitation set forth in a claim must be found in an accused product or process exactly or by a substantial equivalent.”). “[A]ll [specified elements in a patent claim] must be regarded as material, leaving open only the question whether an omitted part is supplied by an equivalent device or instrumentality.” Hubbell v. United States, 179 U.S. 77, 82, 21 S.Ct. 24, 45 L.Ed. 95 (1900). Nothing in the text of § 1498 warrants a contrary interpretation of an infringing use here. Indeed, the result is consistent with the narrow reading that a court must assign § 1498. Because § 1498(a) waives sovereign immunity for infringement actions against the government, a court must give the statute a strict construction. See Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citing Schillinger v. United States, 155 U.S. 163, 30 Ct.Cl. 480, 15 S.Ct. 85, 39 L.Ed. 108 (1894)); Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1346 (Fed.Cir.2004); RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed.Cir.1998). The waiver “must be unequivocally expressed in statutory text” and the courts will not imply exceptions. Lane, 518 U.S. at 192, 116 S.Ct. 2092 (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 37, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) and Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). Consistent with these principles a court must resolve any ambiguity in the statute “in favor of immunity.” See United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995). Applying these principles to § 1498(a) makes the narrowest interpretation of an infringing “use” presumptively correct. Because I must narrowly construe the breadth of the statutory language, the sovereign immunity analysis confirms that the “use” of a claimed method under § 1498(a) requires practicing every step in the claim. B. Assuming Zoltek alleges an infringing use, the question becomes where the § 1498(a) claim arises. Under § 1498(c), Congress curtailed its sovereign immunity waiver to preclude § 1498(a) claims “arising in a foreign country.” The question here is the extent of this curtailment when the government practices a patented process having multiple steps. In addressing this question, it is useful to imagine four factual scenarios. The first and easiest scenario is where all of the steps of the process were performed in this country — a situation in which there is no question that a claim, if any, must arise in the United States. The second scenario is where all of the steps were performed abroad, as is true in this case with the alleged infringement of the Nicalon fiber claims. (I address these claims in the next section.) Later in the opinion, I will address the meaning of 1498(c) in the context of the third and fourth scenarios, in which some, but not all steps were performed abroad; in the third scenario, the last step of the process is practiced abroad, and in the fourth scenario (as with the Tyranno fiber claims), the last step is practiced in the United States. 1. I shall start with the Nicalon fiber claims, in which all of the infringing steps were performed abroad. Clearly the infringing activity is entirely outside the United States from a geographical perspective. Therefore, it does not occur “within” the United States as required by § 271(a), as the law has long recognized that patent infringement claims arise where the infringing activity is consummated. See, e.g., Deepsouth, 406 U.S. at 527, 92 S.Ct. 1700 (holding that final assembly abroad of a patented device cannot be an infringing manufacture within the meaning of § 271(a)). But this is not a § 271(a) action, and there is therefore no a priori reason why this court must interpret the “arising in a foreign country” language of § 1498(c) as being antonymous with the phrase “within the United States,” as used in § 271(a). However, based on a review of the legislative history and a broad construction of § 1498(c) — a construction necessary to limit the scope of Congress’ waiver of sovereign immunity under § 1498(a) — I would hold that § 1498(c) precludes at a minimum those actions premised on infringing activity in which all steps of the infringing process are performed abroad. Congress enacted § 1498(c) in 1960 as part of its amendments providing an action against the government for copyright infringement. See Pub.L. No. 86-726, 74 Stat. 855 (1960). While Congress considered various drafts, the State Department suggested the language eventually codified at § 1498(c). The discussion accompanying the suggestion indicates that the Department specifically intended the language of subsection (c) to remedy concerns that the proposed bill would allow suit for actions abroad, by the United States, which infringed copyrights. See H. Rep. No. 86-624, at 6-7 (1959) (reprinting June 5, 1958 letter from William B. Macomber, Jr., Assistant Secretary of State, to James O. Eastland, Chairman of the Senate Judiciary Committee). Recognizing that the patent provisions of § 1498(a) had the same ambiguity “with respect to infringements occurring abroad,” the State Department suggested making the foreign country exception applicable to both patent and copyright infringement. Id. at 7. The Commerce Department agreed that there was ambiguity concerning “an act of infringement in a foreign country,” and endorsed the State Department suggestion. See id. at 5-6 (reprinting Feb. 27, 1959 letter from Frederick H. Mueller, Under Secretary of Commerce, to Emanuel Cel-ler, Chairman of the House Judiciary Committee). The foreign country exception at § 1498(c) adopts the State Department suggestion without change. See Pub.L. No. 86-726, 74 Stat. 855 (1960) (codified in relevant part at § 1498(c)). In short, the legislative history confirms that Congress intended § 1498(c) to foreclose actions on § 1498(a) violations taking place in, or arising in, a foreign country. In construing statutory language, it is prudent to be cognizant of constructions that courts have accorded to identical language, where it occurs in other statutes. Here I recognize that Congress took the language of § 1498(c) from identical language found at 28 U.S.C. § 2680(k), adopted twelve years earlier. Normally, where Congress borrows language from one statute in enacting another, the meaning accorded terms in the source statute can be taken as probative of the meaning in the borrowing statute. See Lorillard v. Pons, 434 U.S. 575, 580-81, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978); id. at 581, 98 S.Ct. 866 (“[Wjhere ... Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute[.J”). Plainly, many determinants of the borrowed statute canon are satisfied here. The statutes serve similar purposes. Both provisions limit the potential government liability occurring abroad by curtailing Congress’s sovereign immunity waiver for tort liability. Moreover, during Senate sub-committee hearings, the testimony made clear that § 1498(c) was intended to provide an exclusion analogous to § 2680(k). In this case, however, the meaning of § 2680(k) has limited value for interpreting § 1498(c). This is true because the borrowed statute canon is not absolute, and it does not justify results either inconsistent with the statutory scheme at bar, or leading to functional absurdity in application. Consequently, for the reasons given below, I conclude that the borrowed statute canon does not compel us to interpret § 1498(c) in light of § 2680(k). In Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), the Supreme Court held that a “claim arising in a foreign country,” under § 2680(k), referred to where tortious injury is suffered. “[TJhe FTCA’s foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.” Id. at 2754. A patent infringement claim, however, is different in kind from the tortious injuries contemplated by § 2680(k). Though patent infringement claims may be viewed as species of tort claims, they are subject to a territoriality restriction unknown in general tort law. Determining the liabilities of the United States for patent infringement under 28 U.S.C. § 1498(a) requires the application of only United States law, because section 1498 conditions the government’s liability on the existence of patent rights granted by the United States. In contrast, the FTCA requires application of local law to determine the liability of the United States, and under governing choice of law principles, the local law to be applied is typically the law of the place where the injury occurred. 28 U.S.C. § 1346(b)(1) (2000). Allowing recovery for foreign injury where the causative acts occurred in the United States thus raised the specter that the liability of the United States would be governed by foreign law. No similar problem exists under the patent laws because United States law will apply to the infringing acts occurring in the United States. Under these circumstances, construing the “arising in” language of section 1498(c) to look to the place of the infringing act rather than the place of the injury is perfectly consistent with the Congressional objectives. Although Zoltek urges the court to read § 1498(c) as limited to claims arising under foreign patent laws, neither Zoltek’s suggestion nor the Supreme Court’s rationale in Sosa sensibly applies here. First, § 1498(a) plainly provides for actions concerning “invention[s] described in and covered by a patent of the United Statesf.]” 28 U.S.C. § 1498(a). Zoltek’s analysis would read this provision, in view of § 1498(c), as waiving sovereign immunity to allow infringement actions under a foreign patent if the asserted claim coincided with protections under an issued U.S. patent. I find that reading stylized and unpersuasive. If Congress intended to allow suit against the government for infringing a foreign patent, it would have so stated, and not limited the possible actions by reference to parallel U.S. patents. Moreover, Zoltek’s suggestion is inconsistent with the plain language of § 1498(c) and the structure of § 1498. It would make little sense for Congress to curtail the sovereign immunity waiver at § 1498(c) if the underlying action in § 1498(a) allowed suit “under foreign law.” In short, § 1498 is consistent with a provision to vindicate a U.S. patent right, not a foreign patent right. Second, for similar reasons, unlike § 2680(k), § 1498(a) does not require a choice of law analysis and the Sosa consideration of place of injury is simply inapplicable here. In sum, the § 1498(a) claim arises where the infringing activity is consummated. This analysis precludes Zoltek’s Nicalon fiber allegations. Where all the steps of a process patent are performed abroad, the claim “arises in a foreign country,” and the action is barred by § 1498(c). The record evidences that the accused Nicalon fiber products were made entirely in Japan. Zoltek’s contention that the government violated § 1498(a) when Lockheed’s Japanese subcontractors “used” Zoltek’s method claims to make the Nicalon products, therefore, fits squarely within our interpretation of § 1498(c). The same holds for the Tyranno fiber allegations, insofar as the fibers were made in Japan. The Court of Federal Claims correctly determined that it lacked jurisdiction to decide those allegations. 2. The infringement allegations concerning the Tyranno fiber products, however, cannot be tethered to any single location. This presents the difficult question. Although the fibers were made overseas, the record shows that the final products were made in the United States. According to Zoltek’s infringement allegations, some of the claimed method steps were practiced in Japan, and some in the United States. The allegedly infringing conduct, in short, was not confined within national boundaries. Does such conduct “arise in a foreign country” within the meaning of § 1498(c)? As explained herein I conclude that it does, with the effect of barring Zoltek’s Tyranno fiber product allegations. Put differently, I read “claims arising abroad” expansively, as capturing any claim that does not arise entirely through domestic infringing conduct. In doing so, I reject any contention that the analysis depends on where any individual step of the claimed method was practiced. Two longstanding interpretative principles support the conclusion that the language at § 1498(c), limiting the sovereign immunity waiver at § 1498(a), includes within its proscription the conduct disputed in this action. First, the courts generally disfavor extraterritorial application of United States law. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (“It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”). The principle rests on sound policy, including a concern to avoid conflict with other national laws, regard for international comity, choice of law analysis, and separation of powers. Thus, in Deepsouth, the Supreme Court expressly refused to extend the scope of § 271(a) to capture an extra-territorial manufacture of an infringing device absent express guidance from Congress. “Our patent system makes no claim to extraterritorial effect ... and we correspondingly reject the claims of others to such control over our markets.” 406 U.S. at 531, 92 S.Ct. 1700 (citing Brown v. Duchesne, 60 U.S. (19 How.) 183, 195, 15 L.Ed. 595 (1856) and Boesch v. Graff, 133 U.S. 697, 703, 10 S.Ct. 378, 33 L.Ed. 787 (1890)). In narrowing the reach of actions under § 1498(a), § 1498(c) manifests a Congressional intent to limit infringement actions where conduct by or for the government sounded abroad. Reading § 1498(c) to foreclose the action at bar is consistent with a strict view of the extra-territoriality principle. Second, this view comports with the narrow construction that a court must afford sovereign immunity waivers. A court must resolve textual ambiguity in a statutory waiver in favor of immunity. As noted above, the waiver must be clear, and ambiguities resolved in favor of immunity. Since the waiver must be construed narrowly, the § 1498(c) exclusion — serving to narrow the waiver at § 1498(a) — must be construed broadly. Cf. Shoshone Indian, 364 F.3d at 1346. Given an expansive reading, these principles indicate that a claim “arises in a foreign country” under § 1498(c) if, as with the Tyranno product allegations, some steps of a claimed method are practiced abroad. Although this court has never decided how § 1498(c) applies to transnational conduct in practicing a patented method, on one occasion our predecessor court was confronted with allegations of infringing use of a transnational device. In Decca Ltd. v. United States, 210 Ct.Cl. 546, 544 F.2d 1070 (1976), as in this case, the government argued that § 1498(c) was a dis-positive bar to jurisdiction. The Court of Claims, however, neither expressly interpreted nor applied the statute. Instead, as explained below, it crafted a test for determining an effective “location” of the accused, internationally disposed, device. The Decca court then determined that if such a device could be said to be located “within the United States,” the § 1498(a) claim for infringing use would arise where the device was “located.” For several reasons I conclude that no comparable test should apply to the facts in this case. To understand why, it bears reviewing the case in detail. Decca involved the Omega long range radio navigation system. Certain components of the system— broadcast stations — were located overseas. The plaintiff, Decca, owned U.S. Patent No. 2,844,816, which claimed radio navigation systems. It alleged that the Omega system infringed certain device claims in the ’816 patent and that the government violated § 1498(a) by using the Omega system. The government sought dismissal, arguing that because some broadcast towers were located in Norway and other overseas locations, the action arose in a foreign country and was barred by § 1498(c). The court disagreed. The Court of Claims defined the “location” of the Omega system to be “in United States territory,” implicitly reasoning that an infringing use “within the United States,” a fortiori, does not give rise to an infringement claim “arising in a foreign country” under § 1498(c). In sum, Decca stands for the narrow, and collateral, proposition that under § 1498(a) the infringing use of a claimed device “arises” where an accused device is “located.” There are, however, no “use of device” claims at issue in this action, and Decca is therefore inapposite. In Decca, the elements of a patented device were assembled, one by one and in different countries, and the device was therefore made. Likewise, in this case, the steps of a patented process were practiced, one by one and in different countries, and the process was therefore performed. However, these cases are not analogous, because the concept of the “use” of a device is fundamentally different from the use of a process. Whereas utility can be extracted from a device only after it has been “made,” utility is extracted from a process concurrent with its being “practiced.” See NTP, 418 F.3d at 1318 (“Because a process is nothing more than the sequence of actions of which it is comprised, the use of a process necessarily involves doing or performing each of the steps recited. This is unlike use of a system as a whole, in which the components are used collectively, not individually.”). As a consequence of this failure in the analogy, Decca is neither on point nor particularly instructive. Consequently, I would decline any invitation to extend Decca’s rationale beyond its intended context of device claims to practicing the steps of a claimed method. In particular, the Decca rationale for characterizing the accused Omega radio navigation system as “located ... within the United States” threatens to swallow the § 1498(c) limitation if applied to the process claim at bar. Decca’s infringement analysis