Healthestate, LLC v. United States, Asm Research, LLC

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HEALTHESTATE, LLC,
Plaintiff-Appellant
v.
UNITED STATES, ASM RESEARCH, LLC,
Defendants-Appellees
______________________
2024-1336
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-00034-KCD, Judge Kathryn C. Davis.
______________________
Decided: March 20, 2026
______________________
BRYANT STEVEN BANES , Neel, Hooper & Banes, P.C.,
Houston, TX, argued for plaintiff-appellant.
J ENNA ELIZABETH MUNNELLY , Civil Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellee United States. Also represented by
SCOTT D AVID BOLDEN, BRIAN M. BOYNTON.
RANGANATH SUDARSHAN, Covington & Burling LLP,
Washington, DC, argued for defendant-appellee ASM
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HEALTHESTATE, LLC v. US 2
Research, LLC. Also represented by T AREK AUSTIN,
BROOKE STANLEY ; YURIJ MELNYK, San Francisco, CA.
______________________
Before D YK, REYNA, and STOLL , Circuit Judges.
REYNA, Circuit Judge.
Appellant HEALTHeSTATE, LLC sued the United
States for breach of contract and copyright infringement in
the U.S. Court of Federal Claims. ASM Research, an entity
that subcontracted with HEALTHeSTATE to develop soft-
ware for the government, joined the litigation as an inter-
ested party. The government and ASM Research moved for
summary judgment on HEALTHeSTATE’s claims, and the
Claims Court granted their motions. We affirm.
BACKGROUND
I.
HEALTHeSTATE (“HeS”) develops digital healthcare
systems for government and commercial clients. Between
2006 and 2011, the government awarded HeS with a series
of contracts to adapt the government’s healthcare software
HEALTHeFORCES for civilian use. From 2006–2011, HeS
released versions of the adapted software under the name
“HEALTHeSTATE.” J.A. 8836–37.
In 2010, HeS sent a letter to the U.S. Army’s Contract-
ing Division indicating that HeS “inadvertently did not as-
sert any restricted rights to the software that is being
modified” under its contract with the government, despite
having infused “$500,000 in private funds” in 2007 and de-
veloping “segregable portions of the software entirely at
private expense.” J.A. 471. HeS informed the contracting
division that in accordance with the Defense Federal Ac-
quisition Regulation Supplement, it was asserting “Re-
stricted Rights” for the software modules created
exclusively with private funds. Id. The following year, HeS
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HEALTHESTATE, LLC v. US 3
released the baseline software at issue: HEALTHeSTATE
Build 252.
Independent of HeS, ASM Research contracted with
the government in 2008 to develop a veterinary services
program. In 2012, ASM Research hired HeS as a subcon-
tractor to help with the project. In addition to assisting in
development, HeS would provide its HEALTHeSTATE
Build 252 as the new veterinary services program’s foun-
dation. HeS and ASM Research together developed a Re-
mote Online Veterinary Record (“ROVR”) program that
enabled Army veterinarians to maintain treatment records
for government-owned animals. The subcontract between
ASM Research and HeS specified that HeS would continue
to have sole ownership to the HEALTHeSTATE “baseline
software.” J.A. 14454.
On May 27, 2014, shortly after its subcontract with
HeS expired, ASM Research delivered the ROVR source
code to the government with Government Purpose Rights.1
The government subsequently awarded ASM Research
with a sole source contract for continued maintenance and
technical support of ROVR.
In October 2014, HeS sent a letter to the government
asserting ownership of the “Proprietary Source Code for
HEALTHeSTATE and ROVR” delivered to the government
by ASM Research. J.A. 735. HeS sent a more detailed
1 Government Purpose Rights provide the govern-
ment the rights to “(i) [u]se, modify, reproduce, release,
perform, display, or disclose technical data within the
[g]overnment without restriction; and (ii) [r]elease or dis-
close technical data outside the [g]overnment and author-
ize persons to whom release or disclosure has been made to
use, modify, reproduce, release, perform, display, or dis-
close that data for United States [g]overnment purposes.”
DFARS 252.227-7013(a).
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HEALTHESTATE, LLC v. US 4
letter in November 2014 describing its relationship with
ASM Research and the entities’ mutual work on ROVR.
The government responded with a request for more in-
formation from both HeS and ASM Research regarding the
ownership of the ROVR source code. In its response dated
February 9, 2015, HeS requested the government “(1) ter-
minate [ASM Research’s] sole source award immediately
and make [the] award to HeS as the rightful owner of the
code, and (2) compensate HeS for the use of its code from 7
May 2014 forward.” J.A. 716. The government never re-
sponded.
II.
In January 2018, HeS filed suit in the U.S. Court of
Federal Claims (“Claims Court”), alleging the government
infringed its copyright for the HEALTHeSTATE and
ROVR software. The government filed a motion to dismiss,
arguing that HeS failed to comply with the copyright reg-
istration requirement under 17 U.S.C. § 411(a), which
would require that HeS allege it had applied for, regis-
tered, or was denied registration of its asserted copyright.
J.A. 3142–43. HeS subsequently applied for and received
two copyright registrations for computer programs, one for
HEALTHeSTATE and one for ROVR. See Registration
Nos. TX-8-498-425 and TX-8-498-391.
HeS then filed an amended complaint adding a claim
for breach of an express or implied-in-fact contract under
the Tucker Act. J.A. 2619 (alleging this court’s jurisdiction
pursuant to 28 U.S.C. § 1491(a)(1) and 41 U.S.C.
§ 7103(f)(5)). HeS referred to several agreements in the
Factual Allegations section of its amended complaint. See
J.A. 2620 (recounting HeS’s assertion of restricted rights
“as allowed by Contract No. W911QY-09-C-0128”);
J.A. 2621 (describing HeS’s “subcontract agreement” with
ASM Research); J.A. 2622 (relaying how HeS and ASM Re-
search “entered into Modification No. 1 to the subcon-
tract”). In its Count No. 1 for breach of contract, HeS
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HEALTHESTATE, LLC v. US 5
broadly pled breach without identifying a specific contract,
alleging “HeS has submitted a proper claim to the govern-
ment for breach of contract, actual or implied in fact.”
J.A. 2625.
ASM Research joined the litigation as a third-party de-
fendant at the government’s request. Following the close
of fact and expert discovery, the parties cross-moved for
summary judgment on the breach of contract claim.
Throughout its summary judgment briefing, HeS relied
solely on an End-User License Agreement (“EULA”) con-
tained in the ROVR software as the contract allegedly
breached by the government. See J.A. 371–73. But during
oral argument, HeS referenced Contract No. W911QY-09-
C-0128, which was awarded by the government to HeS in
2009 (the “0128 Contract”). J.A. 2497. The court asked
whether HeS was changing its representation made during
discovery that the contract at issue is the EULA, to which
HeS responded “No, Your Honor.” J.A. 2498. The court
pointed out that in HeS’s summary judgment briefing,
HeS’s express contract argument was limited to the EULA.
J.A. 2502. When asked whether HeS had addressed the
0128 Contract in its summary judgment briefing, HeS
stated, “it’s in our pleadings,” but then asserted the EULA
as the operative contract at issue. J.A. 2502–03 (“[T]he
EULA controls at that point.”). Consequently, the Claims
Court addressed only the EULA in its decision for sum-
mary judgment on the breach of contract claim. See
J.A. 154–70. The court granted summary judgment in fa-
vor of the government and ASM Research, finding that HeS
failed to establish that it was owed a “sum certain,” and, in
the alternative, failed to establish that a government agent
with actual authority agreed to the EULA. Id.
The copyright claim proceeded on a separate timeline.
Prior to moving for summary judgment, the government
and ASM Research requested that the Claims Court refer
questions to the Register of Copyrights regarding alleged
inaccuracies in HeS’s applications for copyright
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HEALTHESTATE, LLC v. US 6
registration. ASM Research asserted that HeS provided
four types of knowingly inaccurate information in its appli-
cations for copyright registration. For each application,
ASM Research alleged that (1) the software was not first
published on the date indicated, (2) the software was not
completed on the date indicated, (3) the software was de-
rived from undisclosed works, and (4) the source code sub-
mitted as the deposit copy included material added after
the date of first publication and had been altered to remove
third-party copyright notices. J.A. 13.
In response, HeS argued that “inaccurate information
(if any) was not submitted as knowingly inaccurate.”
J.A. 93. After finding that ASM Research had sufficiently
alleged that the inaccuracies in the copyright applications
were known to HeS, the court inquired of the Register
whether it would have rejected HeS’s applications had it
been aware about the alleged inaccuracies. The Register
confirmed that if the Copyright Office had been aware of
the alleged inaccuracies, it would have refused registra-
tion. J.A. 28351–52. HeS subsequently moved for sum-
mary judgment on its copyright infringement claim. ASM
Research and the government cross-moved for summary
judgment limited to the question of whether HeS’s copy-
right registrations were valid. ASM Research and the gov-
ernment also filed a Daubert motion to exclude opinions of
HeS’s expert, Dr. Hassell. The Claims Court granted the
government and ASM Research’s motions for summary
judgement on copyright infringement. The court found
that HeS’s copyright registrations were invalid because
HeS knowingly submitted inaccurate deposit copies and
the Register would have refused registration had it been
aware of the inaccuracies. The Claims Court granted the
motion to exclude HeS’s expert and entered summary
judgement on the alternative ground that HeS could not
make a prima facie claim of copyright infringement with-
out Dr. Hassell’s testimony.
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HEALTHESTATE, LLC v. US 7
HeS appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
D ISCUSSION
On appeal, HeS challenges the Claims Court’s grant of
summary judgment on both the breach of contract and cop-
yright infringement claims. HeS asserts that the govern-
ment exceeded its limited license to use HEALTHeSTATE
Build 252, constituting breach of contract. HeS also con-
tends that its claim complied with the requirements of the
Contract Disputes Act because it included “a sum certain
reducible to a simple mathematical calculation as the law
contemplates.” Appellant Br. 29 (citation modified).
Regarding copyright, HeS argues that the Claims
Court improperly imputed to HeS’s CEO, Barry Greene,
knowledge or willful blindness regarding inaccuracies in
HeS’s copyright registration applications. HeS also argues
that the Claims Court erred in excluding the testimony of
its expert.
We review a grant of summary judgment by the Claims
Court de novo. FastShip, LLC v. United States, 892 F.3d
1298, 1302 (Fed. Cir. 2018). Summary judgment is appro-
priate “if the movant shows that there is no genuine dis-
pute as to any material fact and the movant is entitled to
judgment as a matter of law.” Rule 56(a) of the Rules of
the Court of Federal Claims.
I. Contract Disputes Act
As a preliminary matter, we address HeS’s purported
claim under the Contract Disputes Act (“CDA”) (41 U.S.C.
§§ 7101–7109). The CDA does not define the elements of a
claim, so this court looks to the Federal Acquisition Regu-
lation (“FAR”) for guidance. ECC Int’l Constructors, LLC
v. Sec’y of Army, 79 F.4th 1364, 1372 (Fed. Cir. 2023). The
FAR defines a claim as:
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HEALTHESTATE, LLC v. US 8
a written demand or written assertion by one of the
contracting parties seeking, as a matter of right,
the payment of money in a sum certain, the adjust-
ment or interpretation of contract terms, or other
relief arising under or relating to the contract.
FAR 2.101 (emphasis added).
This court addressed the sum certain requirement in
Contract Cleaning, stating that “[a]ll that is required is
that the contractor submit in writing to the contracting of-
ficer a clear and unequivocal statement that gives the con-
tracting officer adequate notice of the basis and amount of
the claim.” Contr. Cleaning Maint., Inc. v. United States,
811 F.2d 586, 592 (Fed. Cir. 1987) (emphasis added).
The Claims Court found that HeS failed to provide its
contracting officer with a sum certain. We agree.
HeS asserts four different methods of calculating a sum
certain, each resulting in a different dollar amount: (1) “at
least $500,000 per pop on contract plus exclusive develop-
ment” (J.A. 1145–46); (2) 25% to 50% of the value of con-
tracts awarded to ASM Research for ROVR work (J.A. 405–
06); (3) 25% of the value of contracts awarded to ASM Re-
search for ROVR work (J.A. 2509–10); and (4) “at least”
25% of the value of contracts awarded to ASM Research for
new ROVR work, plus an annual maintenance fee of
$372,500 (J.A. 2403).
HeS’s inability to identify the specific amount of the
claim foretells a failure to present a clear and unequivocal
sum certain. The purpose of a sum certain is to enable a
contracting officer to settle a claim with finality. See Metric
Constr. Co., Inc. v. United States, 14 Cl. Ct. 177, 179 (1988).
“When, however, no specific amount or an open-ended
amount is sought, the contracting officer cannot settle the
case by awarding the contractor the amount sought.” Id.;
see also Exec. Ct. Reps., Inc. v. United States, 29 Fed. Cl.
769, 775 (1993) (noting that “when the contractor fails to
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HEALTHESTATE, LLC v. US 9
specify a sum certain . . . the contracting officer cannot fi-
nally settle a case by simply awarding a specific amount of
money, because such a settlement would not preclude the
contractor from filing suit seeking the difference between
the amount awarded and some larger amount never specif-
ically articulated to the contracting officer”).
On appeal, HeS contends that its February 9, 2015 let-
ter to the government contained “all that is necessary to
constitute a proper claim.” Appellant Br. 23. We disagree.
HeS’s letter requested that the government “compensate
HeS for the use of its code from 7 May 2014 forward.”
J.A. 716. Arguing that its sum certain “was reducible to a
simple mathematical calculation of the 25% minimum of
the ‘new ROVR Work,’” HeS relies on one of 19 exhibits in-
cluded with the letter. J.A. 160. The exhibit, a modifica-
tion to the ROVR subcontract between HeS and ASM
Research, indicates that ASM Research will pay HeS a
minimum of 25% to a maximum of up to 50% for any new
work awarded by the government. J.A. 723. HeS argues
that the government could have calculated its sum certain
as 25% of the amount paid to ASM Research for the “new
ROVR work.” Appellant Br. 26–27 (citing J.A. 723).
HeS’s calculations based on the exhibit to the February
9, 2015 letter lack specificity. Even assuming a contracting
officer were able to locate the specific paragraph of the par-
ticular exhibit to the letter, the contracting officer would
not know whether any amount shy of the 50% maximum
would be sufficient to put HeS’s claim to rest. HeS cites
“25%” without explaining why the contracting officer would
not choose “50%.” See Appellant Br. 27 (“To get this num-
ber, all the Government had to do was multiply 25% times
the value of the contracts awarded to ASMR requiring the
use of the ROVR Code.”). We agree with the Claims Court
that in view of the 25%–50% range, a contracting officer
could not “finally settle [the] case by simply awarding a
specific amount of money.” Exec. Ct. Reps., 29 Fed. Cl. at
775.
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HeS’s varied calculations and open-ended amounts fall
short of “a clear and unequivocal statement that gives the
contracting officer adequate notice of the basis and amount
of the claim.” Contr. Cleaning, 811 F.2d at 592. Its claim
was therefore inadequate under the CDA and fails as a
matter of law. ECC, 79 F.4th at 1380 (“A claim that does
not state a sum certain has not sufficiently pleaded the el-
ements of a claim under the CDA and may be denied by the
contracting officer and dismissed on appeal to the boards
or Court of Federal Claims for failure to state a claim.”).
We find no error in the Claims Court decision granting ap-
pellees’ motions for summary judgment for failure to state
a sum certain.
II. Breach of Contract
HeS argued before the Claims Court that the EULA
“sets forth the commercial license terms by which the Gov-
ernment is bound.” J.A. 371. HeS characterized the EULA
as an express contract, or, alternatively, an implied-in-fact
contract. J.A. 374 n.11. We are not persuaded.
To recover for breach of contract, a party must allege
and establish four elements: (1) a valid contract between
the parties, (2) an obligation or duty arising out of the con-
tract, (3) a breach of that duty, and (4) damages caused by
the breach. San Carlos Irr. & Drainage Dist. v. United
States, 877 F.2d 957, 959 (Fed. Cir. 1989). To establish an
express or implied-in-fact contract with the government, a
plaintiff must show (1) mutuality of intent, (2) considera-
tion, (3) an unambiguous offer and acceptance, and (4) ac-
tual authority on the part of the government’s
representative to bind the government in contract. Hanlin
v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003).
There is no genuine dispute of material fact that alt-
hough the EULA was present in the ROVR code, it was
“hidden” and the code was specifically modified to not dis-
play the EULA to users. J.A. 366. A development manager
for ASM Research testified that although the software
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HEALTHESTATE, LLC v. US 11
contained a EULA, “the ROVR program [was] configured
to not display the EULA to users.” J.A. 7908; see also
J.A. 7952 (“Q: Is the EULA shown to users or anybody at
the Department of Defense today? A: Not for the ROVR
application.”). A former HeS lead engineer testified that
the ROVR software was installed on Pentagon servers in
2013, but she did not remember whether the EULA was
displayed or not. J.A. 1073, 1074. Indeed, HeS proffered
no evidence showing that the EULA was displayed. Thus,
because it is undisputed that no one with authority to bind
the government even saw the EULA, HeS has failed to
meet its burden of establishing that it formed a valid con-
tract with a government official with authority to bind the
government. Night Vision Corp. v. United States, 469 F.3d
1369, 1375 (Fed. Cir. 2006) (affirming grant of summary
judgment where plaintiff failed to produce evidence that a
government representative with contracting authority
made a contract with plaintiff). Thus, HeS fails to estab-
lish the first element of the breach of contract allegation:
the existence of a valid contract. San Carlos, 877 F.2d at
959; see also D & N Bank v. United States, 331 F.3d 1374,
1381–82 (Fed. Cir. 2003) (affirming summary judgment of
no contract liability where plaintiff “attempt[ed] to forgo
the initial step for proving a breach of contract claim
(namely, proving that a contract existed)”); 1st Home Liq-
uidating Tr. v. United States, 581 F.3d 1350, 1358 (Fed.
Cir. 2009) (“[N]o contract was formed, and thus, there was
no breach.”). Consequently, the Claims Court properly
granted summary judgment of no breach of contract.
On appeal, HeS asserts the 0128 Contract as the agree-
ment breached by the government. See Appellant Br. 16.
But HeS waived any argument that the government
breached the 0128 Contract. See Novosteel SA v. U.S.,
Bethlehem Steel Corp., 284 F.3d 1261, 1273–74 (Fed. Cir.
2002).
Before the Claims Court, HeS asserted that the EULA
was the contract breached by the government. J.A. 8180,
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HEALTHESTATE, LLC v. US 12
8186; J.A. 8107 (HeS’s corporate representative confirming
sole reliance on the EULA (“Q: Am I understanding cor-
rectly that the HEALTHeSTATE, LLC, software [E]ULA is
the contract that HEALTHeSTATE is alleging is breached
in this litigation? A: Yes. Q: HEALTHeSTATE is not claim-
ing a breach of any other contract other than the [E]ULA.
Correct? A: I don’t believe so.”)); J.A. 351–406, 17343–67
(arguing breach of contract in two summary judgment
briefs with no mention of the 0128 Contract).
HeS cannot now raise for the first time on appeal a new
breach of contract theory not raised before the Claims
Court. “It is the general rule . . . that a federal appellate
court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 120 (1976). See also Finch
v. Hughes Aircraft Co., 926 F.2d 1574, 1576 (Fed. Cir. 1991)
(“[A]bsent exceptional circumstances, a party cannot raise
on appeal legal issues not raised and considered in the trial
forum.”); Hylete LLC v. Hybrid Athletics, LLC, 931 F.3d
1170, 1175 (Fed. Cir. 2019) (holding that appellant’s argu-
ments “are raised for the first time on appeal and are there-
fore waived”). Exceptional circumstances are not present
in this case. We conclude that HeS’s arguments concerning
breach of the 0128 Contract have been waived.
III. Copyright Infringement
HeS argues that the Claims Court erred in granting
summary judgment that its copyright registrations are not
valid as a matter of law. Specifically, HeS argues that it
did not know that its applications for copyright registration
contained inaccurate information. HeS contends that any
inaccuracies in its copyright applications were immaterial.
We disagree.
The Copyright Act requires copyright holders to regis-
ter their works before suing for copyright infringement. 17
U.S.C. § 411(a). To obtain registration, the author of a
work must deposit with the Register of Copyrights a copy
of the work and an application. Unicolors, Inc. v. H&M
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HEALTHESTATE, LLC v. US 13
Hennes & Mauritz, L. P., 595 U.S. 178, 181 (2022) (citing
17 U.S.C. §§ 408, 409). In the case of computer programs,
the Copyright Office provides that “the applicant should
submit ‘one copy of identifying portions’ for the specific ver-
sion of the program that the applicant intends to register.”
U.S. Copyright Office, The Compendium of U.S. Copyright
Office Practices § 1509.1(C) (3d ed. 2017) (“Compendium”)
(quoting 37 C.F.R. § 202.20(c)(2)(vii)). Once the Register
determines, inter alia, that the deposited material consti-
tutes copyrightable subject matter, the Register issues to
the applicant a certificate of registration. 17 U.S.C.
§ 410(a).
Section 411 of the Copyright statue provides that a cer-
tificate of registration satisfies a potential plaintiff’s regis-
tration requirement “regardless of whether the certificate
contains any inaccurate information, unless”:
(A) the inaccurate information was included on the
application for copyright registration with
knowledge that it was inaccurate; and
(B) the inaccuracy of the information, if known,
would have caused the Register of Copyrights to re-
fuse registration.
17 U.S.C. § 411(b)(1) (emphasis added).
We first consider whether the Claims Court erred in its
conclusion that HeS’s applications for copyright registra-
tion included inaccurate information. Appellees’ expert,
Dr. Martin Walker, testified that HeS’s deposit copies do
not match the source code as it existed in the years claimed
by HeS in its copyright applications: 2006 for ROVR and
2013 for HEALTHeSTATE. Dr. Walker indicated that the
ROVR deposit copy contains files that were added or re-
vised after 2006, including in 2010, 2011, and 2013.
J.A. 9103–05. Regarding HEALTHeSTATE, Dr. Walker
found the deposit copy contains occurrences of code added
or revised in 2015 and 2017, several years after the 2013
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HEALTHESTATE, LLC v. US 14
completion date represented by HEALTHeSTATE.
J.A. 9105–06. Dr. Walker also identified numerous in-
stances where source code in the deposit copies had been
altered to delete or change references to third parties as
authors or copyright holders. J.A. 9108–10.
In response, HeS filed a declaration by its CEO, Barry
Greene, who submitted the deposit copies. Mr. Greene con-
ceded that “[i]t is entirely possible that the working servers
(by 2018) from which code was pulled contained newer date
information the servers had written, or some newer
patches developed to fix production bugs for our live cus-
tomers.” J.A. 1275. Mr. Greene also indicated that by
2018, HeS had “updated the code to remove instances of
references to third parties no longer relevant to specific
customers’ needs or functional requirements.” J.A. 1278.
The Claims Court found that HeS’s evidence does not
rebut the findings laid out in Dr. Walker’s report. J.A. 176.
We agree. The Claims Court correctly determined that
there is no genuine issue as to any material fact on the
question of whether HeS submitted inaccurate deposit cop-
ies with its registration applications.
The next step of the 17 U.S.C. § 411(b)(1) analysis re-
quires us to consider whether the inaccuracies were known
to HeS. 17 U.S.C. § 411(b)(1)(A). In Unicolors, the Su-
preme Court recognized that “[l]ack of knowledge of either
fact or law can excuse an inaccuracy in a copyright regis-
tration,” but “courts need not automatically accept a copy-
right holder’s claim that it was unaware of the relevant
legal requirements of copyright law.” Unicolors, 595 U.S.
at 182, 187. “Willful blindness may support a finding of
actual knowledge.” Id. at 187.
We first consider whether HeS lacked knowledge of
fact, thereby excusing the inaccuracies in its copyright reg-
istrations. The Claims Court cited Mr. Greene’s testimony
as establishing that HeS was aware that its deposit copies
contained versions of the software that included new code
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HEALTHESTATE, LLC v. US 15
and that removed references to third parties. J.A. 180. We
agree with the Claims Court that there is no genuine issue
of material fact as to the question of whether Plaintiff had
knowledge of the underlying facts that produced the inac-
curacy in the deposit copies.
We next consider lack of knowledge of relevant copy-
right law. See Unicolors, 595 U.S. at 182 (“Lack of
knowledge of either fact or law can excuse an inaccuracy in
a copyright registration.”). In considering whether there
was knowledge of the relevant legal requirements of copy-
right law, we review “[c]ircumstantial evidence, including
the significance of the legal error, the complexity of the rel-
evant rule, the applicant’s experience with copyright law,
and other such matters” to determine whether the appli-
cant was actually aware of, or willfully blind to, legally in-
accurate information. Id. at 187–88.
Here, the Claims Court found that Mr. Greene was at
least willfully blind to the law. J.A. 181. HeS admits that
Mr. Greene prepared the applications “in a very short time
without advice or assistance from counsel.” Appellant
Br. 9. Mr. Greene did, however, seek guidance from the
Copyright Office. Appellant Br. 8–9 (explaining that Mr.
Greene “conferred with the United States Copyright Office”
during preparation of HeS’s applications). Moreover, the
Copyright Office provides resources for pro se applicants,
including an extensive Compendium. See generally Com-
pendium. Regarding “Computer Programs,” the Compen-
dium states that “the applicant should submit an
identifying portion of the source code for the particular ver-
sion of the program that the applicant intends to register.”
Id. at § 1509.1(C). As the Claims Court noted, “[d]epositing
an inaccurate copy is a significant error because the deposit
copy identifies the precise copyright work for which the ap-
plicant seeks copyright registration.” J.A. 184 (first citing
17 U.S.C. § 408; then citing J.A. 28350). The Claims Court
concluded that based on circumstantial evidence, including
the significance of the legal error and the clarity of the
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HEALTHESTATE, LLC v. US 16
requirements for deposit copies, HeS was at least willfully
blind to the legally inaccurate information. J.A. 185. We
agree with the Claims Court that HeS has not raised a gen-
uine issue of fact as to the first element of Section 411(b)(1).
The parties do not dispute that the second element of
Section 411(b)(1) is satisfied. The Register confirmed that
if the Copyright Office had known that the copyright appli-
cations included any one of the four inaccuracies asserted
by ASM Research, it would have refused registration.
J.A. 28351–52. Because HeS submitted deposit copies with
known inaccurate information, and the Copyright Office
confirmed it would have refused registration had it known
of these inaccuracies, HeS’s copyright registrations are in-
valid. 17 U.S.C. § 411(b)(1). Without valid copyright reg-
istrations, HeS cannot legally assert copyright
infringement. 17 U.S.C. § 411(a). We hold that the Claims
Court appropriately granted summary judgment to appel-
lees on HeS’s copyright infringement claim. As such, we do
not reach HeS’s argument regarding the exclusion of its
copying expert’s testimony.
CONCLUSION
We have considered HeS’s remaining arguments and
find them unpersuasive. For the reasons stated above, we
affirm the Claims Court’s grant of summary judgment on
HeS’s breach of contract and copyright infringement
claims.
AFFIRMED
COSTS
Costs against HeS.
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