author: TARANTO, Circuit Judge.

text:
    ASETEK DANMARK A/S, Plaintiff-Appellee v. CMI USA INC., fka Cooler Master USA, Inc., Cooler Master Co., Ltd., Defendants-Appellants
    2016-1026, 2016-1183
    United States Court of Appeals, Federal Circuit.
    Decided: April 3, 2017

      Erik R. Puknys, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Palo Alto, CA, argued for plaintiff-appellee. Also represented by Robert F. McCauley, Jeffrey Daniel Smyth; Arpita Bhattacha-ryya, Boston, MA.
    Kyle Dakai Chen, Cooley LLP, Palo Alto, CA, argued for defendants-appellants. Defendant-appellant CMI USA Inc. also represented by Reuben Ho-Yen Chen.
    Before PROST, Chief Judge, NEWMAN, and TARANTO, Circuit Judges.
   TARANTO, Circuit Judge.

In January 2013, Asetek Danmark A/S sued two parties — Cooler Master USA, Inc., which a month later became CMI USA Inc.; and Cooler Master Co., Ltd., a Taiwanese company — in the Northern District of California, asserting infringement of two of Asetek’s patents, U.S. Patent Nos. 8,240,362 and 8,245,764. All of the accused products are branded “Cooler Master.” A few months before trial, by stipulation, Asetek dismissed with prejudice its claims against the Taiwanese company (hereafter “Cooler Master”). Asetek’s claims of infringement by CMI USA (hereafter “CMI”), and CMI’s invalidity counterclaims, were tried partly to a jury and partly to the court. Asetek prevailed and received a judgment of infringement, and of no invalidity, plus a damages award against CMI of $404,941, based on a 14.5% royalty rate. The district court also entered an injunction covering the specific “Cooler Master” products found to infringe. The injunction runs not only against CMI but also against Cooler Master — which was not then a party (though it later intervened and became one) and which was not adjudicated liable for infringement.

We affirm the district court’s rulings on infringement, invalidity, and damages. We remand as to part of the injunction, ie., insofar as the injunction reaches conduct by Cooler Master (regarding the covered products) that goes beyond abetting a new violation by CMI. The governing standards for reaching such conduct by persons not adjudicated liable for the underlying wrong, reflected in Federal Rule of Civil Procedure 65(d), are highly fact-specific. In this case, a determination of the propriety of the injunction’s reach would benefit from further findings and, if sought and needed, further record development.

I

The ’362 and ’764 patents describe and claim systems and methods for cooling the “central processing unit (CPU) or other processing unit of a computer system” using cooling liquid. ’362 patent, col. 1, lines 12-14; ’764 patent, col. 1, lines 11-13. According to the patents, which have similar specifications, liquid-cooling systems in the prior art consisted of “many components,” which were “coupled together,” increasing “total installation time” and causing “leakage.” ’362 patent col. 1, lines 34-49; ’764 patent, col. 1, lines 32-37. By contrast, the ’362 and ’764 patents describe systems that combine multiple components — a “heat-exchanging interface,” a “reservoir,” and a “pump” — into a single “integrate element.” ’362 patent, col. 2, lines 9-11; ’764 patent, col. 2 lines 5-6. As recited in the asserted claims, the “reservoir” includes two “vertically” separated chambers, referred to as the “upper chamber” and “lower chamber,” ’362 patent, col. 18, lines 56-65, or “pump chamber” and “thermal exchange chamber,” ’764 patent, col. 27, lines 49-57.

Claim 1 of the ’764 patent is representative:

1. A cooling system for a heat-generating component, comprising:
a double-sided chassis adapted to mount a pump configured to circulate a cooling liquid, the pump comprising a stator and an impeller, the impeller being positioned on the underside of the chassis and the stator being positioned on the upper side of the chassis and isolated from the cooling liquid;
a reservoir adapted to pass the cooling liquid therethrough, the reservoir including:
a pump chamber including the impeller and formed below the chassis, the pump chamber being defined by at least an impeller cover having one or more passages for the cooling liquid to pass through;
a thermal exchange chamber formed below the pump chamber and vertically spaced apart from the pump chamber, the pump chamber and the thermal exchange chamber being separate chambers that are fluidly coupled together by the one or more passages; and
a heat-exchanging interface, the heat-exchanging interface forming a boundary wall of the thermal exchange chamber, and configured to be placed in thermal contact with a surface of the heat-generating component; and
a heat radiator fluidly coupled to the reservoir and configured to dissipate heat from the cooling liquid.

’764 patent, col. 27, lines 39-65. The asserted claims of the ’362 patent are similar, but additionally require the “heat-exchanging interface” to be “removably attached” or “removably coupled” to the “reservoir.” ’362 patent, col. 20, lines 3-6; id. col. 20, lines 40-44.

“Cooler Master is a Taiwanese supplier of computer components, including cooling devices for heat generating components” of computers. Appellants’ Br. 24. Its products include the “Cooler Master”-branded Seidon 120M, Seidon 120XL, Seidon 240M, Seidon 120V, Seidon 120V Plus, Glacer 240L, Nepton 140XL, and Nepton 280L liquid-cooling products at issue in this ease. CMI is a U.S. company that — as reflected in its name (“Cooler Master USA, Inc.”) until February 2013, a month after this suit began, ECF Nos. 60, 61 (May 2014 change of caption) — collaborates with Cooler Master in designing and selling “Cooler Master”-branded products in the United States. J.A. 3562-63. CMI also “assists” Cooler Master “in setting the manufacturer’s suggested retail price of the accused products sold in the United States.” J.A. 3563. The evidence, seemingly undisputed, is that, by oral agreement, CMI was Cooler Master’s exclusive U.S. distributor of Cooler Master products. J.A. 7848-49; Transcript of Proceedings at 1069, 1106-07, Asetek Danmark A/S v. CMI USA Inc., 00457-JST (N.D. Cal. Dec. 10, 2014), ECF No. 243. Between 2012 and 2013, CMI began selling specified Seidon, Glacer, and Nepton models of “Cooler Master”-branded products in the United States.

In its January 2013 suit against CMI and Cooler Master, Asetek asserted that they were infringing claims 14-15 and 17-19 of the ’362 patent and claims 1-15 and 17-18 of the ’764 patent by selling, offering to sell, and importing the Seidon, Glacer, and Nepton products. Discovery proceeded, and infringement and invalidity contentions were filed. By September 5, 2014, the litigation was far enough along that CMI moved for summary judgment of invalidity. Cooler Master did not join that motion, however, because, the day before, it and Asetek stipulated to Cooler Master’s dismissal with prejudice — a dismissal entered on September 5, 2014. Asetek agreed to that dismissal after CMI and Cooler Master witnesses testified, in discovery, to Cooler Master’s exclusive-distribution arrangement with CMI for the accused products in the United States.

The case went to trial a few months later, in December 2014. At trial, CMI argued that the ’362 patent was not infringed, that the ’764 patent was anticipated by U.S. Patent No. 7,544,049 (Koga), and that the ’362 and ’764 patents were obvious over Koga and Korean Utility Model No. 20-0314041 (Ryu). The district court granted Asetek’s motion for judgment as a matter of law that Koga did not anticipate claim 4 of the ’764 patent, and the jury returned a verdict for Asetek on the remaining issues. The jury found that CMI infringed, directly and contributorily, the asserted claims of the ’362 patent and rejected CMI’s Koga-based anticipation challenge to the remaining claims of the ’764 patent. Additionally, the jury made specific findings, related to obviousness, about the level of ordinary skill in the relevant art, the scope and content of the prior art, differences between the prior art and the inventions claimed by the ’362 and ’764 patents, and objective indicia of non-obviousness. For example, the jury found that the claimed liquid-cooling systems differ from the prior art because they combine a “pump” and a “reservoir” “into a single unit” and because the “reservoir” is a “single receptacle that is divided into an upper chamber and a lower chamber.” The jury also found six objective indicia of non-obviousness. The jury found Asetek entitled to a 14.5% reasonable-royalty rate and awarded $404,941 in damages.

In April 2015, the district court entered its findings of fact and conclusions of law on various matters the parties had reserved to it. Asetek Danmark A/S v. CMI USA Inc., 100 F.Supp.3d 871 (N.D. Cal. 2015). The court concluded that CMI failed to prove that the ’362 and ’764 patents were invalid for obviousness, lack of written description, or indefiniteness. In September 2015, the district court denied CMI’s motions for judgment as a matter of law or a new trial on infringement and damages as well as for a new trial on obviousness. Asetek Danmark A/S v. CMI USA Inc., No. 3:13-cv-00457-JST, 2015 WL 5568360, at *3-12 (N.D. Cal. Sept. 22, 2015).

At the same time, the district court granted Asetek’s motion for an injunction against both CMI and Cooler Master, the latter not then a party. Id. at *12-21. After identifying the “Infringing Products” covered (specified Seidon, Nepton, and Glacer models), the injunction states:

(2)CMI USA, Inc. and its subsidiaries and affiliated companies (collectively defined as “CMI”), as well as CMI’s successors, assigns, officers, directors, agents, servants, employees, representatives and attorneys, and those persons in active concert or participation with them who receive notice of the order are hereby immediately and permanently restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering for sale or selling in the United States, or importing into the United States, or causing to be made, used, offered for sale, or sold in the United States, or imported into the United States, the Infringing Products.
(3) Cooler Master Co., Ltd. and its subsidiaries and affiliated companies (collectively defined as “Cooler Master”), as well as Cooler Master’s successors, assigns, officers, directors, agents, servants, employees, representatives and attorneys, and those persons in active concert or participation with them who receive notice of the order are hereby immediately and permanently restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering for sale or selling in the United States, or importing into the United States, or causing to be made, used, offered for sale, or sold in the United States, or imported into the United States, the Infringing Products.
(4) Within 14 days of issuance of this order, CMI and Cooler Master shall provide written notice of this judgment and order, and the injunction ordered herein, to: their officers, directors, agents, servants, representatives, attorneys, employees, subsidiaries and affiliates, and those persons in active concert or participation with them. CMI and Cooler Master shall take whatever means are necessary or appropriate to ensure that this order is properly complied with.
(5) CMI and Cooler Master shall include a copy of this Order and the written notice in paragraph (6) below [stating that the product is affected by a permanent injunction, infringes the ’362 and ’764 patents, and “may not be sold, offered for sale,” “used,” or “imported into the United States”] along with every bill of sale for the Infringing Products and in the boxes in which the Infringing Products are shipped or sold, regardless of where they are sold, indicating that they infringe the patents-in-suit, are subject to an injunction in the United States, and thus cannot be sold, offered for sale, imported, or used in the United States.

Id. at *20. The injunction lasts until the ’362 and ’764 patents expire, except that either party may seek modification if either patent is finally adjudged invalid in another proceeding. Id. at *21.

In January 2016, Cooler Master appealed the injunction, paragraphs (3)-(5) of which impose obligations on it. Cooler Master then intervened, becoming a party again, even though in similar circumstances non-parties have been permitted to appeal. See, e.g., Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1277 (9th Cir. 1992) (“a nonparty who is enjoined or otherwise directly aggrieved by a judgment has standing to appeal the judgment without having intervened in the district court”). The district court subsequently denied Cooler Master’s motion to stay the injunction.

CMI and Cooler Master appeal. CMI and Cooler Master present challenges to the district court’s post-trial rulings on infringement and obviousness and to the injunction. CMI also presents challenges to the district court’s post-trial rulings on damages. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

II

We review- a denial of a motion for judgment of a matter of law de novo and must affirm unless “the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). We review a denial of a motion for new trial for abuse of discretion. Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1013 (9th Cir. 2007). We review a grant of a permanent injunction for an abuse of discretion, with underlying legal conclusions reviewed de novo. S.E.C. v. Goldfield Deep Mines Co. of Nev., 758 F.2d 459, 465 (9th Cir. 1985).

A

Appellants argue that the jury was required to find the ’362 patent not infringed as a matter of law. Specifically, they contend that the alleged “heat exchanging interfaces” in the accused products are not “removably attached” or “removably coupled” to “reservoirs,” as the asserted claims require. The reason, appellants say, is that removing the “heat exchanging interfaces” in the accused products would “damage the products or otherwise render them nonfunctional.” Appellants’ Br. 37.

We reject appellants’ non-infringement argument. “[W]here the parties and the district court elect to provide the jury only with the claim language itself, and do not provide an interpretation of the language in the light of the specification and the prosecution history,” the jury’s findings “must be tested by the charge actually given and by giving the ordinary meaning of the language of the jury instruction,” -and the only question is one of substantial evidence. Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1321 (Fed. Cir. 2003). That rule applies here, because the parties did not request a construction of the claim terms “removably attached” or “removably coupled,” and they did not object to the district court’s jury instructions. Applying the ordinary meaning, then, we conclude that substantial evidence supports the finding of infringement.

The jury was entitled to find that the “heat exchanging interfaces” in the accused products were “removably attached” or “removably coupled.” Asetek’s expert, Dr. Tilton, narrated videos about the Sei-don 120M, Seidon 120V, Glacer 240L, and Nepton 140XL products and testified that the “heat exchanging interfaces” in those products could be removed by unscrewing the triangle-head safety screws that secured them. Dr. Tilton explained that he had removed the screws in each of the accused devices using commercially available screwdrivers. CMI’s expert, Dr. Car-man, agreed that the “heat exchanging interfaces” could be removed, but testified that they were not “removably attached” or “removably coupled” because the screws were not intended to be removed. The jury could reasonably reject Dr. Car-man’s opinion about whether unscrewing was intended, or his opinion about whether unscrewing was needed to meet the “re-movably attached” or “removably coupled” requirements, or both.

Likewise, the jury could reasonably find the requirements met even though removing the “heat exchanging interfaces” from the accused products would cause coolant to leak. There is nothing unreasonable about finding a component “removably attached” if it can be detached in such a way that the device would function again if the component were reattached. And contrary to appellants’ contention, the patent specification here does not require functionality upon detachment with no further steps: the cited passage describes an embodiment in which, if the “heat exchanging interface” is “excluded” from the embodiment, “sealing” must be provided to prevent “cooling liquid” from “leaking” from the “reservoir.” ’362 patent, col. 8, lines 66-67, and col. 9, lines 13-19.

Dorel Juvenile Group, Inc. v. Graco Children’s Products, Inc., 429 F.3d 1043 (Fed. Cir. 2005), which interpreted superficially similar claim terms, does not establish non-infringement here. In Dorel, which involved a patent on a child’s car seat, the asserted claims recited a “base,” which was “removably attached” and “re-movably secured” to a “seat.” Id. at 1044-45. We upheld a claim construction, relying on the specification for context, that “re-movably attached” in that case implied that the “seat” and “base” were “affixed together in a manner that contemplates that the seat may be removed from the base such that the seat remains functional.” Id. at 1045. The present case involves no claim construction, but instead claim application, and the context is quite different, e.g., there is no requirement here that each component was meant to function separately (unlike the seat in Dorel).

B

Appellants argue that the subject matter of the asserted claims of the ’764 patent would have been obvious over Koga and Ryu. Specifically, they argue that, as a matter of law, Koga’s “sucking channel” is a “thermal exchange chamber” (a requirement of all asserted claims of the ’764 patent) because the “sucking channel” “exchanges some heat.” Appellants’ Br. 45. The district court found that Koga did not teach this claim element, a factual component of the obviousness analysis. Asetek, 100 F.Supp.3d at 886-88. That finding is not clear error. Specifically, the fact that Koga’s “sucking channel” exchanges some heat, no matter how minimal and inevitable, does not entail that it is properly considered a “thermal exchange chamber.”

No ordinary meaning or claim construction requires appellants’ conclusion that Koga’s “sucking channel” is a “thermal exchange chamber” simply because it exchanges some heat. No meaning of the claim phrase precludes its limitation only to devices with certain device-defining characteristics such as purpose and principal use, excluding other structures that occasionally or in minor ways produce the same result — any more than a bedside plug-in radio must be considered a room radiator because it unavoidably gives off some heat. As the district court noted, accepting appellants’ conclusion courts draining any meaning from “thermal exchange” in the “thermal exchange chamber” phrase. Asetek, 2015 WL 5568360, at *10. Under appellants’ theory, any chamber would seem to count as a “thermal exchange chamber” because, as Dr. Tilton testified, “[h]eat transfer will always happen between any two bodies that are at ... different temperatures.” Transcript of Proceedings at 1558, Asetek Danmark A/S v. CMI USA Inc., No. 3:13-cv-00457-JST (N.D. Cal. Dec. 16, 2014) (“Dec. 16 Tr.”), ECF No. 215. That would appear true even for an insulated chamber, because imperfections in the insulation would result in some heat transfer. It was proper to reject appellants’ theory.

Moreover, sufficient evidence supports the district court’s finding that a person of ordinary skill in the art would not consider Koga’s “sucking channel” to be a “thermal exchange chamber.” Dr. Tilton testified that the purpose of Koga’s “sucking channel” was to deliver fluid to Koga’s “pump room,” not to transfer heat; that any heat transferred by the “sucking channel” would be inconsequential because of its small surface area and the high rate of flow through it; and that Koga positively teaches away from placing the “sucking channel” on top of, and in thermal contact with, Koga’s “heat generating component,” as the ’764 patent requires. Transcript of Proceedings at 1417-18, Asetek, 3:13-cv-00457-JST (N.D. Cal. Dec. 15, 2014), ECF No. 213. Dr. Carman, CMI’s expert, testified that heat exchange was not the purpose of. Koga’s “sucking channel.” Dec. 16 Tr. at 1645. On the evidence, the district court could reasonably find that Koga’s “sucking channel” was not a “thermal exchange chamber.”

This is a claim-specific finding about what characterizes some devices as a “thermal exchange chamber” and Koga’s “sucking channel” not having those characteristics. As a result, appellants are wrong in suggesting that the finding is contrary to various precedents. Those precedents all involve situations where a reference or device does come within a claim term. See Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1299 (Fed. Cir. 2009) (where a claim term covers an accused product or process, there is infringement even if de minimis); Embrex, Inc. v. Service Eng’g Corp., 216 F.3d 1343, 1349 (Fed. Cir. 2000) (same); Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 630, 632 (Fed. Cir. 1987) (claim element of “making a concentrated liquid fertilizer by reacting sulfuric acid and urea” taught by reference requiring the sulfuric acid to be “added slowly”). That is enough to distinguish those precedents from this case.

C

We also reject CMI’s challenge to the damages award. CMI argues that, in calculating the 14.5% royalty award, Ase-tek’s damages expert, Dr. Mody, improperly relied on Asetek’s per-unit profit margin under its licensing agreement with another company, Corsair. According to CMI, Dr. Mody’s approach circumvented the requirement, applicable when lost-profits damages are sought, that a patent owner prove that it would have made the infringer’s sales “but for” the infringement — a requirement not applicable to reasonable-royalty damages. See BIC Leisure Prods., Inc. v. Windsurfing Int’l, Inc., 1 F.3d 1214, 1218 (Fed. Cir. 1993); Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156 (6th Cir. 1978). Additionally, CMI argues that the royalty award is not supported by substantial evidence because the Asetek-Cor-sair license included a maximum royalty rate of 7%. We reject both arguments.

35 U.S.C. § 284 guarantees to a patent holder damages “adequate to compensate for the infringement, but in no event less than a reasonable royalty.” A patent owner, having prevailed on liability, may receive a reasonable royalty or lost profits, but not both for the same infringing units. See SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 926 F.2d 1161, 1164 (Fed. Cir. 1991). There is no dispute here about the propriety of using the common hypothetical-negotiation approach to calculating a reasonable royalty, under which the finder of fact “attempts to ascertain the royalty upon which the parties would have agreed had they successfully negotiated an agreement just before infringement began.” Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1324 (Fed. Cir. 2009). The amount of damages presents a fact question, reviewed for substantial evidence in a jury-tried case, and the underlying methodology is reviewed for an abuse of discretion, including consistency with governing legal principles. See Aqua Shield v. Inter Pool Cover Team, 774 F.3d 766, 770 (Fed. Cir. 2014); Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1394 (Fed. Cir. 2003).

To the extent that Dr. Mody’s analysis referred to Asetek’s per-unit profit on its cooling units, CMI’s legal objection lacks merit. As we have recognized, a patent owner participating in a hypothetical negotiation would consider the profits on sales it might lose as a result of granting a license. Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1554-55 (Fed. Cir. 1995) (en banc). The fact that a royalty calculation relies in part on the patent owner’s per-unit profits does “not make it an unreasonable award.” Id. at 1555. We have explained that a patent owner would be “unlikely” to be “interested in” accepting a royalty rate lower than its profit margin on the patented products. See Mitutoyo Corp. v. Cent. Purchasing, LLC, 499 F.3d 1284, 1292 (Fed. Cir. 2007) (stating that the patent owner would be “unlikely [to] have been interested in less than a 29.2% [reasonable-royalty] rate,” equal to the patent owner's profit margin). Negotiating for a per-unit, payment equal to its per-unit profit can be a logical approach for a patent owner that is uncertain of how many sales might be lost by granting the license at issue or is just using its own experience to place a value on the right to use the technology at issue.

In its Reply Brief, CMI acknowledges “that profits may be considered as a factor in the reasonable royalty calculation,” but it argues error in the damages verdict on the ground that this factor “predominated and virtually subsumed Asetek’s entire damages case.” Reply Br. 24. But CMI identifies no legal principle about predominance that would somehow bar a damages analysis that takes reasonable account of all the evidence relevant to the hypothetical negotiation — as Dr. Mody’s analysis did. As Dr. Mody testified, she adjusted her hypothetical-negotiation model to account for numerous considerations other than Asetek’s per-unit profits, including “the nature and the scope of the license” at issue, Transcript of Proceedings at 866, Asetek, No. 3:13-cv-00457-JST (N.D. Cal. Dec. 9, 2014) (“Dec. 9 Tr.”), ECF No. 242; see id. at 855, Asetek’s “established policy and marketing program,” id. at 867, the' “commercial relationship” between Asetek and CMI, id. at 855, and the extent to which CMI’s profits under the license would “be attributable to the patented invention,” id. CMI has not shown that the resulting damages verdict rests on a legally improper methodology.

• Nor has CMI shown, as it suggests, that the use of Asetek’s per-unit profit in the royalty analysis makes lost-profits damages no longer worth pursuing by patent owners. There are obvious reasons for some patent owners to pursue lost profits. In some circumstances, e.g., where the patent owner is a strong economic monopolist, proof of lost sales caused by the infringement and the profits on those lost sales (as well as loss of profits from sales made at prices lowered by the infringement) may be less uncertain than proof of a reasonable royalty under the standards applicable to the latter. And a lost-profit award can be higher. A hypothetical-negotiation analysis for a royalty considers not only the patent owner’s interests, but also the other side of the negotiation table under the particular conditions of the hypothetical negotiation. See Aqua Shield, 774 F.3d at 770-72 & n.1. A lost-profits analysis is different, because as a general matter, the patent owner is entitled to be made whole, upon proper proof, for its loss of profits caused by the infringement, without discounting for the rational interests limiting willingness to pay on the infringer’s side. Not surprisingly, a leading commentary observes that “[l]ost profits damages frequently bring the patent owner much more than royalty awards” and are sought “in nearly every case in which the patent owner manufactures or sells something that could reasonably be interpreted as competing with an infringer’s product.” John Skenyon, Christopher Márchese & John Land, Patent Damages Law and Practice § 2:1, at 64 (2015 ed.) (footnote omitted).

Finally, substantial evidence supports the jury’s finding that a hypothetical negotiation between Asetek and CMI would have resulted in a 14.5% reasonable royalty rate, even though one portion of the Corsair license included a maximum royalty rate of 7%. First, as Dr. Mody testified, the Corsair license included an effective royalty rate of between 10% and 19% based on two components: (1) the actual royalty rate of between 2% and 7% and (2) the minimum-purchase requirement. Using that range, Dr. Mody concluded that Asetek and CMI would have agreed to a royalty rate of about 16%. Second, Dr. Mody testified that Asetek Would have sought a higher royalty rate from CMI than from Corsair because Ase-tek would have treated CMI as a “competitor,” rather than a valued “customer” (like Corsair). See Dec. 9 Tr. at 855, 858, 868-71. Although CMI’s general manager, Mr. Chen, testified that Asetek was willing to license its products to CMI and Cooler Master, that assumption, even if credited, hardly means that Asetek would have treated them the same as Corsair. We conclude that the jury’s adoption of a 14.5% royalty rate must be affirmed.

D

Cooler Master and CMI together challenge the injunction on two grounds. See Appellants’ Br. 6 (injunction challenge presented for both appellants). First, they argue that Cooler Master’s September 2014 dismissal from the case with prejudice precluded the district court from subjecting Cooler Master to the injunction’s obligations. Second, they argue that the injunction is too broad in scope insofar as the injunction reaches Cooler Master’s conduct (sale, importation, etc., involving the identified “Cooler Master”-branded products) other than conduct that abets a new violation by CMI, the only party adjudicated liable for infringement.

The latter argument invokes the standards that define the limited circumstances in which injunctive obligations may be imposed on persons who have not been adjudicated liable for the wrong for which the injunction is a remedy. It is worth noting the limited scope of the argument appellants have made on appeal in this regard — which does not include arguments that, in certain circumstances in other cases,, persons not held liable have made and may make against being subjected to injunctive obligations. Thus, appellants do not argue that the district court lacked personal jurisdiction over Cooler Master. They do not argue that Cooler Master lacked notice or an opportunity to be heard on the issues related to the injunction. Nor do they argue that the injunction is improper under eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006), or because Cooler Master does not sufficiently threaten to engage in the covered conduct. In addition, appellants do not argue that naming Cooler Master in the injunction is independently improper, but only that the challenged obligations imposed on Cooler Master here are improper for reasons it could invoke if they were imposed through contempt. See Aevoe Corp. v. AE Tech Co., Ltd., 727 F.3d 1375, 1383-84 (Fed. Cir. 2013) (because S&F Defendants were privies of the originally enjoined party AE Tech, and not acting independently, naming them in modification of injunction merely made explicit what was already implicit). Moreover, in challenging certain injunctive coverage of Cooler Master, appellants do not separately challenge the language reaching the “successors, assigns,” etc. of Cooler Master if Cooler Master itself is properly covered. And appellants do not dispute that Cooler Master is properly subject to injunctive obligations to avoid actions that would abet a new violation by CMI. See Reply Br. 26.

We address appellants’ two appellate arguments in turn. The first argument, based on the agreed-to dismissal of Cooler Master shortly before trial, we reject. The second, narrower argument we think warrants a remand for further proceedings, given the fact-specificity of the relevant standards in this delicate area.

1

Appellants contend that, even if an injunction against Cooler Master would be proper had no claim ever been filed against it in this case, it cannot be enjoined because it was initially a defendant and the claims against it were dismissed with prejudice. Appellants rest that contention on the premise that dismissal is an adjudication that has claim-preclusive effect. But, while the premise is correct, the inference appellants urge — that claim preclusion bars relief as to future conduct — is not.

Appellants’ argument assumes that the “claim” covered by the dismissal, which concerned Cooler Master’s pre-dis-missal conduct, is the same as a “claim” covering conduct subject to the injunction, which is Cooler Master’s future conduct— not just post-dismissal, but post-trial and post-injunction-issuance. It is well established, however, that the difference in timing means that the two situations do not involve the same “claim” for claim-preclusion purposes, even if all the conduct is alleged to be unlawful for the same reason. See Dow Chems. Corp. v. NOVA Chems. Corp. (Can.), 803 F.3d 620, 626-27 (Fed. Cir. 2015); Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1343 (Fed. Cir. 2012); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4409 (2d ed. 2002). As we have explained, “a party who sues a tortfeasor is ordinarily not barred by a prior judgment from seeking relief for discrete tortious action by the same tortfeasor that occurs subsequent to the original action.” Aspex Eyewear, 672 F.3d at 1342. The rationale is simple: claim preclusion “requires a party to assert all claims that the party could have asserted in the earlier lawsuit”; and a party cannot assert claims based on “tortious conduct” that “had not occurred at that time — those claims could not have been asserted and therefore are not barred.” Id.

Appellants cite nothing to the contrary. The cited decisions establish only that a stipulated dismissal “generally constitutes a final judgment on the merits” that “precludes a party from reasserting the same claims” or “same cause,” Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051-52 (9th Cir. 2005); In re Marino, 181 F.3d 1142, 1144 (9th Cir. 1999), or from challenging “acts [that] fell within the scope of the pleadings” of the dismissed action, Esquire, Inc. v. Varga Enters., Inc., 185 F.2d 14, 17 (7th Cir. 1950). They do not address future conduct like that covered by the injunction at issue here.

2

The fundamental principle relevant to appellants’ narrower, scope objection to the injunction here is that an injunction may not “make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law.” Regal Knitwear Co. v. NLRB, 324 U.S. 9, 13, 65 S.Ct. 478, 89 L.Ed. 661 (1945) (citing Chase Nat’l Bank v. City of Norwalk, 291 U.S. 431, 436-37, 54 S.Ct. 475, 78 L.Ed. 894 (1934), and other decisions). But as that formulation suggests, an injunction may reach certain conduct by persons not held liable for the underlying wrong where the conduct is not undertaken “independently” of the persons who have been held liable. Federal Rule of Civil Procedure 65(d) reflects the standards when it declares that an injunction “binds only” “the parties,” “the parties’ officers, agents, servants, employees, and attorneys,” and “other persons who are in active concert or participation” with them “who receive actual notice of [the injunction] by personal service or otherwise.”

In this case, the injunction imposes two sorts of obligations on Cooler Master — it restricts conduct by Cooler Master that abets a new violation by CMI; and it also restricts conduct by Cooler Master that does not abet a new violation by CMI. Putting aside the dismissal-based contention, which we have rejected, appellants object here only to the latter obligations. Those are found explicitly in paragraphs 8, 4, and 5 of the injunction. And they are found implicitly in paragraph 2, because, under well-established law, that paragraph’s “active concert or participation” coverage includes some conduct not abetting a new violation by the liable person— such as might occur, under certain circumstances, if a liable person (like CMI here) turned over the wrongful operations to another person or even simply ceased operating or existing altogether, to be succeeded by another. As the parties made clear at oral argument, there is a current live dispute about the permissibility of barring Cooler Master from engaging in U.S.focused activities involving the infringing products other than through CMI, and that substantive dispute arises under paragraph 2 as well as paragraphs 3, 4, and 5.

Different terminology has been used for the two categories of enjóinable conduct by persons not held liable. Judge Learned Hand wrote, for the Second Circuit, that the non-liable party “must either abet the [liable party], or must be legally identified with him.” Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir. 1930), quoted in Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1395 (Fed. Cir. 1996) (Additive Controls I). Sometimes “privity” is used for the “legally identified” category, which covers a number of bases for binding a non-liable person to obligations imposed on a liable person; but whatever the labels, both categories are well established in the law and recognized as within the “active concert or participation” standard of Rule 65(d). See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 179-80, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Regal Knitwear, 324 U.S. at 13-14, 65 S.Ct. 478; Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1304-05 (Fed. Cir. 2012); Aevoe, 727 F.3d at 1384 (“‘Active concert or participation’ has been interpreted to include both aiders and abettors of, and privies of, an enjoined party.”); Additive Controls I, 96 F.3d at 1394-95, 1397; Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 91 F.3d 914, 919-20 (7th Cir. 1996); G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 35 (1st Cir. 1980).

The second category, which is the only one at issue in this appeal, is less well defined than the first. And its implementation by the courts has reflected a fact-specific approach and particular caution so as to protect the strong, underlying background principle shared with the related area of preclusion law: “ ‘everyone should have his own day in court.’ ” Taylor v. Sturgell, 553 U.S. 880, 893, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (quoting Richards v. Jefferson County, 517 U.S. 793, 798, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996)). But this category, included within the “active concert or participation” standard, embraces at least two types of situations of potential relevance here.

Thus, the “legally identified” category has long covered at least some situations in which the non-liable person is a successor of the liable person in a relevant respect. See Golden State, 414 U.S. at 180, 94 S.Ct. 414 (explaining in the employer context that Rule 65(d)’s policy is consistent with imposing a predecessor’s obligation on a successor enterprise: “[A] bona fide purchaser, acquiring, with knowledge that the wrong remains un-remedied, the employing enterprise which was the locus of the unfair labor practice, may be considered in privity with its predecessor for purposes of Rule 65(d).... The tie between the offending employer and the bona fide purchaser of the business, supplied by a [National Labor Relations] Board finding of a continuing business enterprise, establishes the requisite relationship of dependence” of the successor’s conduct on the liable person.); Regal Knitwear, 324 U.S. at 14, 65 S.Ct. 478 (discussing successors and assigns and recognizing enjoinability “in appropriate circumstances” of “ ‘those to whom the business may have been transferred, whether as a means of evading the judgment or for other reasons’ ” (quoting Walling v. James V. Reuter, Inc., 321 U.S. 671, 674, 64 S.Ct. 826, 88 L.Ed. 1001 (1944))). This court so recognized in Additive Controls I, explaining that certain “successor” situations, involving evasive intent, are covered by the “active concert or participation” standard of Rule 65(d). 96 F.3d at 1397; see Merial, 681 F.3d at 1304, 1305 (similar); Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 154 F.3d 1345, 1355 (Fed. Cir. 1998) (Additive Controls II) (test of “substantial continuity of identity,” originating in “labor relations context,” “has been adopted as a general expression of the degree of closeness that Rule 65(d) requires for a non-party successor to be subject to the injunction”).

Another subcategory recognized in various cases involves situations in which a party’s litigation of a case is sufficiently controlled by another person that the latter may be said to have had its day in court and on that ground be subject to the injunctive obligations. The First Circuit in G. & C. Merriam recognized that a non-party is “legally identified” with a liable party, and may therefore itself be enjoined, if the nonparty “had such a key role in the [party’s] participation in the injunction proceedings that it can be fairly said that he has had his day in court in relation to the validity of the injunction.” 639 F.2d at 37. We recognized the point in Additive Controls II, quoting G. & C. Merriam in explaining that the officer of a corporation is legally identified with a corporation if the officer had just such control over the corporation’s litigation. 154 F.3d at 1352. The Seventh Circuit made the same point in National Spiritual Assembly, relating G. & C. Merriam’s holding to the established principle that a nonparty may be “bound by a judgment if she assumed control over the litigation in which that judgment was rendered.” 628 F.3d at 852 n.4 (quoting Taylor, 553 U.S. at 895, 128 S.Ct. 2161; citing Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)).

In the present case the district court specifically invoked the “successor” standards when it cited the above-quoted pages of Golden State and Regal Knitwear. Asetek, 2015 WL 5568360, at *17. And in entering the injunction, the district court relied on certain facts: “CMI is authorized by ... Cooler Master to sell Cooler Master-branded liquid-cooling devices in the United States”; “CMI and Cooler Master have an exclusivity agreement where CMI is Cooler Master’s exclusive U.S. distributor”; and “CMI and Cooler Master jointly developed the infringing products.” Id. “Because of Cooler Master’s past history in developing the infringing products and its contractual relationship with CMI,” the court then concluded, “Cooler Master is an appropriate subject of the injunction under Rule 65(d)(2).” Id. at *18.

In drawing that conclusion, the district court relied on this court’s decision in Ae-voe. While that decision is instructive in various ways, it involves different facts from the present case in at least one respect. In Aevoe, the non-liable persons (the S&F Defendants) were barred from selling the “infringing products obtained from” the liable person (AE Tech). 727 F.3d at 1379-80. Here, Cooler Master is the supplier; it does not acquire the products at issue from CMI.

We do not decide what ultimate legal significance that distinction may have here. A chain of title to particular units is just one of a number of facts of potential relevance to the inquiry into the proper scope of the injunction here. For example, in Merial, we upheld an injunction barring non-party Velcera from making, using, selling, or importing certain products developed, manufactured, or packaged with the assistance or participation of the liable party, Cipla, even if Cipla acted only abroad. 681 F.3d at 1289-92, 1304-05. We relied on the district court’s findings that the “multilayered relationships that linked Velcera and Cipla” were structured “to obfuscate illicit and intentional concerted action” by those parties. Id. at 1305. Here, besides other facts, Asetek has alleged that, while Cooler Master may not acquire its products from CMI, CMI’s cooperation in modifying its exclusivity deal was obtained or needed in order for Cooler Master to engage, other than through CMI, in the U.S.-focused sales and related activities involving the products at issue.

We do not think it advisable to resolve the issue of the proper scope of the injunction here without a fuller picture of the facts described by the district court. Rather, we think, further proceedings are warranted before a final conclusion is drawn about the injunction in this case. Both the delicacy of the injunctive authority at issue and the tradition of narrow fact-dependent determinations whether to invoke it argue for deferring conclusions until the facts about the relationship of Cooler Master and CMI, both in their businesses and in this litigation, are more fully developed and their legal significance more fully explored. See Parker v. Ryan, 960 F.2d 543, 546 (5th Cir. 1992) (identifying need for further inquiry and remanding); cf. United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers, 964 F.2d 180, 184 (2d Cir. 1992) (“Whether any person is bound by a judgment always depends on the precise relationship of that person to the underlying litigation....”).

Without prejudging ultimate materiality, and without intending to be complete, we note some facts that either side or both sides of this case may find worthy of further development to form a full picture of whether Cooler Master may be “legally identified” with CMI for present purposes: the nature of the exclusivity relationship between the firms (e.g., its scope, its ter-minability); trademarks and other aspects of the two companies’ relations at relevant times; the origins of CMI and its relationship to Cooler Master; the details of and intent behind changes in the companies’ relations, particularly since liability was found in this case; and the companies’ relationship in the conduct of this litigation, in which products made by Cooler Master and carrying its brand name are at stake, both before and after Cooler Master was dismissed. We do not decide the relevance or implications of such facts. Nor do we answer several related, potentially relevant questions: If Cooler Master needs CMI’s permission to itself engage in the U.S.-focused acts at issue, would such acts be properly viewed as taken in active concert or participation with CMI? Is CMI’s interest in such Cooler Master acts suggested by the fact that CMI itself has joined in Cooler Master’s challenges to the injunction’s scope on appeal, challenges whose success would free Cooler Master to transfer business away from CMI? Whether or not Cooler Master has plenary freedom to transfer its business away from CMI, was Cooler Master, after leaving this case, still exercising control over CMI’s conduct of this litigation, which concerned the future of Cooler Master’s products, or did Cooler Master simply leave its products’ fate in this litigation in CMI’s hands?

Two final, related points. First, the need for further proceedings to determine the proper reach of the injunction in this case leads us to vacate the injunction, effective upon issuance of our mandate, insofar as the injunction reaches conduct by Cooler Master that does not abet new violations by CMI. The district court is to conduct those proceedings in as reasonably prompt a fashion as possible. Our partial vacatur of the injunction does not foreclose Asetek from pursuing reinstatement of the vacated portion of the injunction should there be unjustifiable delay by Cooler Master in completing the proceedings, or from pursuing any other remedies against Cooler Master, if otherwise authorized by law.

Second, such proceedings might be unnecessary, at all or for a time, if Asetek chooses, in the meantime, to file a new injunctive infringement action against Cooler Master. In such an action, Asetek might seek a preliminary injunction, relying on the judgment reached after full litigation in the present case. We do not prejudge the merits of any such request, ■ or the merits of any such separate suit, including any invocation by Asetek of privity-based issue preclusion against Cooler Master (which is not foreclosed simply by the absence of claim preclusion, New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). We note only that such a proceeding might produce rulings that postpone the need to decide, or even moot, the delicate remedial issue that we here remand to the district court.

Conclusion

For the foregoing reasons, we affirm the district court’s denial of CMFs motions for judgment as a matter of law and for new trial. We affirm the injunction except insofar as it reaches Cooler Master’s conduct that does not abet new violations by CMI. Insofar as the injunction reaches such conduct, we vacate the injunction and remand for further consideration in accordance with this opinion.

Costs awarded to Asetek.

AFFIRMED IN PART, VACATED IN PART, REMANDED IN PART

      . Asetek's complaint did not identify the Seir don 120V Plus, and the jury did not specifically find that the '362 and ’764 patents covered that product. But the district court's injunction identified the Seidon 120V Plus as an infringing device because Asetek and CMI stipulated that it has the same pump head design as the Seidon 120V, which was specifically considered by the jury. On appeal, neither CMI nor Cooler Master challenges the inclusion of the Seidon 120V Plus in the injunction.

      . Asetek argues that a substantial-evidence standard applies, because the jury implicitly found that Koga’s "sucking chamber” was not a "thermal exchange chamber” in rejecting anticipation. We need not scrutinize the jury verdict or otherwise address that contention. Any difference between "clear error” and “substantial evidence” makes no difference to our conclusion about Koga and the claim element at issue.

      . We have also explained that a patent owner in a hypothetical negotiation would rationally consider not only its own potential losses from licensing but those of parent, sister, or similarly related companies. See Union Carbide Chems. & Plastics Tech. Corp. v. Shell Oil Co., 425 F.3d 1366, 1378 (Fed. Cir. 2005), overruled on another issue, Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 576 F.3d 1348 (Fed. Cir. 2009) (en banc in part).

      . The Court in Taylor described recognized exceptions to that principle in the preclusion context, such as where a person in the later suit sufficiently controlled the litigant in the earlier suit, 553 U.S. at 893-95, 128 S.Ct. 2161, and rejected a broad “virtual representation” exception, id. at 895-904, 128 S.Ct. 2161. We do not suggest that the analysis in the preclusion context is on all fours with the injunction-scope analysis, but the two areas share some underlying principles. See Nat’l Spiritual Assembly of the Baha'is of the U.S. Under the Hereditary Guardianship, Inc. v. Nat’l Spiritual Assembly of the Baha’is of the U.S., Inc., 628 F.3d 837, 847-54 (7th Cir. 2010) (borrowing from Taylor preclusion law to resolve Rule 65(d) issue).

      . As Golden State’s "dependence” language confirms, where that standard is met, the non-liable person’s conduct is not “wholly independent” of the liable person. Golden State, 414 U.S. at 180, 94 S.Ct. 414.

      . Additive Controls I cites Kloster Speedsteel AB v. Crucible Inc., 793 F.2d 1565, 1582-83 (Fed. Cir. 1986) (acquirer of assets of liable person), overruled in unrelated respect, Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2009), and New York v. Operation Rescue National, 80 F.3d 64, 70-71 (2d Cir. 1996) ("successors” may include organizations through which “similarly constituted groups of individuals move fluidly between multiple unincorporated associations that share the same basic leadership and goals”). We note that, in Travelhost, Inc. v. Blandford, 68 F.3d 958, 961-65 (5th Cir. 1995), the Fifth Circuit rejected a particular injunction’s coverage of an arms-length purchaser of a liable person’s assets.


source: Caselaw Access Project

author: O’MALLEY, Circuit Judge.

license: Public Domain

text:
    AGILITY PUBLIC WAREHOUSING COMPANY KSCP, fka Public Warehousing Company K.S.C., Appellant v. James N. MATTIS, Secretary of Defense, Appellee
    2016-1265
    United States Court of Appeals, Federal Circuit.
    Decided: April 4, 2017

      John Patrick Elwood, Vinson & Elkins LLP, Washington, DC, argued for appellant. Also represented by Bryan Bunting, Michael Charness, Adrianne Lisbeth Goins, Joshua Stephen Johnson, Ralph Mayrell.
    Peter Anthony Gwynne, Commercial Litigation Branch, Civil Division, United States Department of Justice, argued for appellee. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Claudia Burke; Daniel Karl Poling, Office of General Counsel, Defense Logistics Agency, United States Department of Defense, Fort Belvoir, VA.
    Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.
   O’MALLEY, Circuit Judge.

Agility Public Warehousing Co. KSCP (“Agility”) appeals from a decision of the Armed Services Board of Contract Appeals (“the Board”) finding that the government did not breach the terms of a supply contract with Agility. See Pub. Warehousing Co., ASBCA No. 56022, 15-1 BCA ¶ 36,062, 2015 WL 4978182. In its decision, the Board stated that it “need not decide whether the government constructively changed contract performance or whether it breached its implied duty of cooperation” because “whether the government breached the contract comes down to contract interpretation.” Id. at 176110. The Board then interpreted the modifications to the contract and found that the government had not breached the contract. Id. at 176110-13. We agree with the Board that the government did not breach the express terms of the contract or a later agreement to consider exceptions, but find that the Board erred when it concluded that it “need not decide” Agility’s implied duty and constructive change claims. We therefore affirm-in-part, vacate-in-part, and remand for further proceedings consistent with this opinion.

I. Background

In May 2002, the Defense Supply Center Philadelphia (“DSCP”), a sub-agency of the Defense Logistics Agency, issued a solicitation for an Indefinite-Delivery/Indefinite-Quantity commercial item type contract to provide food and non-food products to customers, including the military, in three overseas zones.. Id. at 176092. On May 30, 2003, DSCP awarded a contract to Agility under which Agility agreed to supply “Full Line Food and Non-Food Distribution” to authorized personnel in Kuwait and Qatar. Id. at 176092-93. The contract allowed the contracting officer to extend the contract up to four times in one-year increments. Id. at 176093.

The contract’s pricing structure called for a “Unit Price” that would be made up of a “Delivered Price” and a “Distribution Price” (i.e., Unit Price = Delivered Price + Distribution Price). Id. This case deals with the Distribution Price component of the pricing structure. Id. The original contract defined “Distribution Price” as “a firm fixed price, offered as a dollar amount, which represents all elements of the unit price, other than the delivered price.” Id. The Distribution Price consists of various costs, including administrative expenses, overhead, profit, packaging costs, transportation costs from a vendor’s distribution facility to the final delivery point, and any other projected expenses associated with the distribution function. Id.

The parties modified the contract numerous times after signing it in 2003 and before signing a new Prime Vendor Contract in 2006. For the purposes of this appeal, we provide a brief summary of the modifications and contract extensions relevant to our decision before discussing the Board’s decision.

A. Modification 1

In June 2003, the parties agreed to Modification 1 (“Mod. 1”). Id. Mod. 1 expanded the contract’s service area to the Iraq deployment zone and established requirements and procedures for making deliveries in Iraq. See id. According to Mod. 1, the supply trucks going into Iraq would “travel as part of a U.S. military escorted convoy” in order to reach their various destinations. Id. Paragraph 4 of Mod. 1 provided, inter alia, “[tjrucks will return to [Agility] upon completion of unloading, and trucks will not be used at the sites for storage purposes.” Id.

B. Modification 2

In July 2003, the parties signed Modification 2 (“Mod. 2”), which set the pricing structure for deliveries to Iraq. Id. at 176093-94. Mod. 2 set the price for refrigerated trucks, or “reefers,” at $2,050 per truck for a three day round trip minimum, with an additional charge of $645 per truck per day for. trips lasting longer than three days. Id. at 176094. For non-refrigerated, or “dry” trucks, Mod. 2 set the price at $1,600 per truck for a three day trip, with an additional charge of $475 per day for trips lasting longer than three days. Id. Mod. 2 also provided that the number of days for which the government would pay fees for each trip would be calculated based on the “time of reporting of loading until truck(s) return(s) to [Agility] distribution facility in Kuwait.” Id. Under Mod. 2, the government did not have a limit on the maximum fees payable to Agility if trucks remained in Iraq for long periods of time. Id.

Mod. 2 also included a provision stating that all other contract terms and conditions not changed by Mod. 2 would remain the same. J.A. 2017. Mod. 2 did not have an integration clause.

C.Modification 19

Agility’s supply trucks delivered food in Iraq using a “hub and spoke system.” Pub. Warehousing Co., 15-1 BCA ¶ 36,062, 176094. In this system, trucks travelled under military escort from Kuwait to major hubs in Iraq. Id. Some supply trucks then travelled from the major hubs to smaller spoke sites, such as forward operating bases. Id. When the supply trucks arrived at their destination, they unloaded the food at either a dining facility (“DFAC”), which hub sites typically utilized, or a mobile kitchen trailer (“MKT”), which spoke sites typically utilized. Id. Supply trucks that traveled to spoke sites would return to the nearest hub site after unloading food at the spoke sites. Id. Unloaded supply trucks at the hub sites waited for a military convoy to return back to Kuwait. Id.

Within this delivery process, a variety of conditions created delays that kept the supply trucks from immediately returning to Kuwait. Id. at 176094-96. The chief cause for “major delays” was the lack of cold-storage equipment at some delivery locations. Id. The MKTs generally lacked cold-storage equipment, which meant that the soldiers at forward operating bases without refrigeration had no place to store items needing refrigeration (e.g., milk, fruits, and vegetables). Id. Without anywhere else to store the items needing refrigeration, the soldiers at these forward operating bases often kept the refrigerated trucks onsite to store food. Id.

To improve the transit time of the supply trucks, the military requested that Agility place transport liaison officers (“TLOs”) at the hubs. Id. at 176096. Agility submitted a plan called “Operation Prime Mover,” which involved deploying TLOs at five hubs to facilitate the mission “by strengthening the [Agility] transport and distribution network throughout Iraq.” Id. On May 10, 2004, the government unilaterally issued Modification 19 (“Mod. 19”) to implement a modified version of Agility’s proposed Operation Prime Mover plan. Id. Under Mod. 19, Agility would deploy up to 25 TLOs to 8 hub sites in Iraq. Id. The TLOs coordinated the logistics and provided a point of contact in order to improve truck fleet and shipment visibility and improve the round trip transit time of trucks. Id.

D. Modification 27

1. Conditions Leading to Modification 27

From May 17-19, 2004, Agility, DSCP, the military, and other entities held a Subsistence Prime Vendor Summit in Kuwait to “come together and work as a team ... to help out [Agility] :.. [to] manage[ ] their distribution assets.” Id. at 176096-97. Agility’s principle message at the Summit was “we need help ... [in] getting our assets back.” Id. at 176097.

As shown in a presentation at the Summit, DSCP data revealed that, from November 2003 to March 2004 — a time period in which Mod. 2 was in effect — the average turnaround time for supply trucks was 15 days, which was greater than the 7-day turnaround time expected by the parties when they signed the contract. Id. at 176097. Some trips, however, greatly exceeded the average and resulted in large costs for the government under Mod. 2’s fee structure. See id. at 176098. For example, other DSCP data showed one refrigerated truck departed Agility’s facility on January 5, 2004, and did not return until June 6, 2004; under Mod. 2’s fee structure, the government paid $99,445 for this 154-day trip. Id. Other examples resulted in the government paying $82,030; $65,905; and $63,325 for similarly-situated trucks that were held in Iraq for long periods of time. Id.

Another DSCP presentation at the Summit noted the government’s average monthly detention costs, which were fore-casted to increase. Id. As a potential alternative, the presentation analyzed the purchase of “adequate refrigeration storage,” which potentially would reduce the government’s costs and Agility’s turnaround times. Id. As a result of the Summit, Lieutenant General Thomas Metz at the MultiNational Corps-Iraq Headquarters in Baghdad drafted a policy memorandum that set out procedures for returning Agility’s trucks with less than 48 hours of delays. Id. The record is unclear, however, whether the policy memorandum was ever signed or issued. Id. The army also failed to deliver the necessary storage units in a timely manner, so “the procedures set out in the policy memorandum were not always followed.” Id.

In August 2004, the parties began having discussions regarding an adjustment to the uncapped fees of Mod. 2. Linda Ford, a contracting officer representing the government in its negotiations and contacts with Agility, expressed concern about the amount of money being spent for the refrigerated trucks that were being kept in Iraq. Id. at 176098. According to Ford’s testimony, the parties, when signing Mod. 2, had not anticipated that truck trips would take such a long time, resulting in the government effectively paying for the entire cost of the truck in one trip. Id.

To address the government’s concerns, as well as its own regarding the length of time its trucks were kept out of service at certain MKTs, C.T. Switzer, Agility’s General Manager and representative in communications with the government, proposed a change to Mod. 19’s TLO program to improve logistics for getting trucks returned to Agility’s base of operations in Kuwait. Id. The proposal called for sending Squad Leaders to travel with the convoys and coordinate with the TLOs, who stayed at the hubs. Id. To implement this change, Agility proposed a blanket increase of 58% to the distribution fee to add TLOs and Squad Leaders to the fee structure. Id. Ford sent back a draft modification that authorized the additional TLO numbers but, in return, proposed a cap on the number of days the government would pay transportation fees. Id.

Discussions between Ford and Switzer continued in regards to the cap on transportation fees. Switzer expressed reservations about the cap being “unqualified,” potentially causing large losses to Agility from government-caused delays. Id. at 176099. He asked if Agility could “submit exceptions to the 29 day rule if the situation is unavoidable despite our best efforts to prevent it.” Id.

Ford replied the next day with a revised draft modification. The revised modification did not remove the 29-day cap. Id. Ford also did not include any reference to exceptions in the revised draft modification, but her email to Switzer stated, “exceptions to the 29 day rule will only be considered in the form of a claim.” Id. Ford’s email then asked Switzer to “sign and return the attached mod or advise if additional changes are required.” Id. Swit-zer did not suggest any other changes and instead signed the modification on September 19, 2004. Id.

2. Terms of Modification 27

The terms of Modification 27 (“Mod. 27”) increased the maximum number of TLOs from 25 to 94 and set a minimum number of TLOs at 81. Id. at 176099-100. Mod. 27 then stated that it “restrueture[d] the transportation fees for the Iraq Deployment Zone to better fit the current deployment zone structure.” Id. at 176100. The new fee structure included a minimum number of days — 4, 5, or 10 days round trip for transports to southern, central, and northern Iraq, respectively — and a minimum cost for trips — $2,695-6,565 for refrigerated trucks and $2,075-$4,925 for dry trucks. Id. Additional days beyond the minimum trip length would continue to result in fees of $645 per day for refrigerated trucks and $475 per day for dry trucks; these were the same daily costs as those used in Mod. 2. Id. Mod. 27 then stated, “[t]he maximum number of allowable trip days is 29. The Government will not pay transportation fees beyond this established maximum. The maximum number of days shall apply to all [Agility] trucks that depart from Kuwait to Iraq on or after September 16, 2004.” Id. It clarified that the fees for additional days beyond the established minimum would only apply if the delay was caused by the government, “i.e. Hub, DFAC or MKT not having the capability to off load and return the truck.” Id.

Mod. 27 also included a provision, similar to the provisions in previous modifications, stating that, except as provided by the terms of Mod. 27, all other contract terms and conditions would remain the same. Id. at 176099.

E. Modification 36

On December 3, 2004, DSCP advised Agility that it planned to issue a contract modification to extend the contract for six months. Id. at 176103. Switzer’s response expressed a willingness to accept the contract extension, but he stated he could not “take lightly the effects of Mod 27’s limitation on the transport charges.” Id. Switzer recognized Agility’s ability to submit claims for trips exceeding the 29-day cap but acknowledged that there was “no guarantee of being paid or if paid, what delays will be involved.” Id.

On January 13, 2005, Ford emailed Agility to ask if it would accept a modification to extend the contract for an additional 8 months. Id. Switzer replied that he had no problem with extending the contract, but he requested that the government rescind the 29-day cap. Id. On January 13, 2005, Ford rejected Switzer’s request to rescind Mod. 27’s 29-day cap. Id. at 176103-04. Ford noted, however, that the government would be open to Agility submitting an alternative proposal based on actual cost and historical truck time frames. Id.

Even though the government refused to rescind Mod. 27’s 29-day cap, Agility agreed to Modification 36 (“Mod. 36”), a bridge contract extension, in February 2005. See id. at 176104. The extension covered a ten-month period from February to December 2005. Id. The terms of the contract, including all modifications in effect at that time, were incorporated into the bridge contract extension of Mod. 36. Id.

F. Agility Files Claims for Exceptions

Based on Ford’s statement to Switzer that the government would consider exceptions to the 29-day cap in the form of a claim, Agility began submitting claims for payment to cover the trucks that were in Iraq longer than 29 days. Id. Agility’s claims were not formal claims under the Contract Disputes Act but, rather, submissions to Ford based on her email that she would consider exceptions in the form of a “claim.” Id. at 176104 n.8.

On February 24, 2005, Agility sent its first claim to Ford for the additional transportation fees that Agility hoped to recover for the trucks that stayed in Iraq beyond 29 days. Id. The claim was in the amount of $2,951,335, and Agility asserted that it covered the period from September 16, 2004, to December 31, 2004. Id. The contracting officer representative who received the claim was confused by the submission and requested assistance from Ford prior to paying it. Id. Ford explained to the representative that Agility had “no written contractual right to payment” but that Agility was submitting claims to the office based on her instruction to do so. Id. Ford told the representative that the claims were submitted for “review and decision.” Id. As to this particular claim, Ford told the representative that she was not in favor of paying it because the government had already paid $8.7 million for those trucks and that she wanted more cost verification data before she would consider paying another $2.9 million. Id. During her testimony before the Board, Ford explained that she wanted to see the cost verification data to determine whether Agility was losing money or could show that the cap was “unreasonable, or unfair, or inequitable”; under those situations, she stated that she would have considered paying the additional fee requested. Id. at 176104-05.

On March 8, 2005, Agility emailed Ford to inform her that Agility would begin invoicing trucks as soon as they passed the 29 days in Iraq and that they would later send an additional claim for the time over 29 days. Id. at 176105. Ford rejected this proposal in an email sent on March 9, 2005. Id. She stated that DSCP would not accept invoices for trucks that had not returned because it was not “part of the normal invoicing procedure.” Id. Agility responded on March 28, 2005, by stating that the additional costs were justified because “the customer IS holding our trucks as storage. This is in direct violation of the terms of [Mod. 1], paragraph 4, which states, ‘Trucks will return to [Agility] upon completion ,of unloading, and trucks will not be used at the sites for storage purposes.’ ” Id.

On May 25, 2005, Agility submitted a second claim. Id. This claim amounted to $4,161,020 and covered all Agility trucks out more than 29 days during January and February 2005. Id. Agility later submitted a third claim on October 26, 2005, for $1,138,370 to cover the truck trips over 29 days in March 2005. Id. at 176106.

On August 7, 2005, Agility contacted Ford to ask what information it needed to submit for the claims so that it could avoid sending “mountains of paperwork.” Id. at 176105-06. Ford told Agility, “[s]end me the mountains of paperwork.” Id. at 176106. Ford explained that all claims had to be fully supportable. Id. She also stated that she needed “actual cost data” to determine whether Agility’s costs had actually exceeded the amount already paid for the deliveries (e.g., whether the costs from the 467 trucks involved in the original claim submission for $2.9 million had actually exceeded the $8.7 million already paid to Agility). Id.

Ford informed Agility on November 17, 2005, that the government intended to deny the submitted claims “for inadequate support.” Id. She explained that the final decision would come no later than December 9, 2005, and that Agility could submit additional documentation before that date if it desired. Id.

On December 18, 2005, Agility informed DSCP that it would be pursuing a Request for Equitable Adjustment for the $13.1 million related to trucks being held in Iraq by the government for longer than 29 days. Id. On December 20, 2005, Agility submitted a Request. Id. at 176107. The government initially did not respond. Id. On December 21, 2006, Agility submitted a certified claim seeking payment of $12,490,060 based on its previously-submitted Request. Id. On April 9, 2007, Ford denied Agility’s claim because: (1) Mod. 27 imposed a 29-day cap; (2) Agility had failed to offer evidence to show that the amount already paid was unfair, unreasonable, or inequitable; and (3) the amount already paid was fair, reasonable, equitable, and in line with the intent of Mod. 27. Id. at 176108. Agility appealed the denial of the claim. Id. at 176108-09.

G. The Board’s Decision

After holding a ten-day hearing, the Board denied Agility’s appeal in August 2015. The Board noted that it did not have any testimony from Switzer to explain why he signed Mod. 27 when he understood the 29-day cap to be unqualified. Id. at 176101. Based on testimony from Ford, however, the Board determined that the selection of 29 days as a cap, which was double the 15-day average truck return time, suggested that both parties intended to shift the risks from the open-ended nature of Mod. 2 to the shared-risk structure of Mod. 27. Id. at 176101-02. The Board found that Ford “offered to leave the door open for claims in the event the 29-day cap caused [Agility] such economic hardship to the point where its ability to continue performance under the contract was threatened.” Id. at 176102.

In its decision, the Board found that Switzer’s email exchanges with Ford showed Switzer “understood the consequences of establishing a cap on the transportation fee structure.” Id. at 176099. The Board also found that “Switzer understood before he signed Mod. 27, that the 29-day cap CO Ford established was unqualified or without exception as to the causes of delay.” Id. As to the government’s informal agreement to consider exceptions in the form of a claim, the Board found that Switzer “understood that CO Ford’s willingness to consider granting a claim was a matter of discretion given the right circumstances and not a matter of contract right.” Id. at 176103.

Because Switzer did not testify, the Board determined that there was no rebut-, tal to Ford’s statement, “made during the course of performance,” that the parties “were in agreement that a transport limitation rule was-absolutely necessary.” Id. at 176103-04. The Board also found that Ford’s statements to Agility “support a finding that, as far as CO Ford was concerned, ‘exceptions to the 29 rule’ would only be considered if it put [Agility] in an economic hardship situation.” Id. at 176104..

In addressing Agility’s arguments, the Board determined that it “need not decide whether the government .constructively changed contract performance or whether it breached its implied duty of cooperation. At its core, whether the government breached the contract comes down to contract interpretation.” Id. at 176110.

The Board held that the storage prohibition in Mod. 1, Paragraph 4, was modified by the combination of Paragraphs 2 and 3 in Mod. 27. Id. The Board noted that Mod. 27, Paragraph 2.e, set forth a maximum of 29 days, whereas Mod. 27, Paragraph 3, stated that “additional days beyond the established minimum fees are only applicable if the delay is customer caused.” Id. (internal quotation marks omitted). The Board then explained that Paragraph 3 defined customer-caused delay to mean “Hub, DFAC or MKT not having the capability to off load and return the truck.” Id. The Board determined that Mod. 27, Paragraphs 2 and 3, when read together, modified Mod. 1, Paragraph 4, because the facts of the case made clear that “the lack of capacity to off load and return trucks were [sic] quintessentially storage-related issues.” Id. The Board also concluded that this result was necessary because it could not harmonize Mod. 1, Paragraph 4, with Mod. 27, Paragraphs 2 and 3, under Agility’s view of the contract as requiring that all trucks be returned upon unloading without being used as storage. Id. According to the Board, Agility’s argument would leave Paragraphs 2 and 3 of Mod. 27 “useless and inexplicable.” Id.

The Board also determined that, in signing Mod. 27, Agility agreed to be bound by its 29-day cap. Id. at 176111. By agreeing to consider exceptions to the 29-day cap, Ford did not abandon the cap altogether. Id. According to the Board, this holding was supported by its findings that Switzer understood before signing Mod. 27 that the 29-day cap was “unqualified” such that Agility was accepting all risks associated with delays beyond 29 days. Id. The Board also held that this understanding of the contract is further supported by the rule of contract interpretation that if “one party to a contract knows the meaning that the other intended to convey by his words, then he is bound by that meaning.” Id. at 176111 (collecting cases). Because the facts showed that Agility knew about Ford’s understanding of the contract and Switzer did not provide any testimony to the contrary, the Board determined that Agility was bound by Ford’s understanding of the contract. Id. at 176111-12. The Board also determined that the government’s conduct supported the Board’s interpretation of the contract. Id. at 176112-18.

II. Discussion

Agility appeals the Board’s conclusions regarding its claims that the government (1) breached the express terms of the contract, (2) breached its promise to consider exceptions to Mod. 27’s 29-day cap on fees, (8) breached its implied duty of good faith and fair dealing, and (4) constructively changed the contract. It does not directly challenge any of the Board’s factual findings. Agility instead argues that the Board misinterpreted the contract, its relevant modifications, and the agreement to consider exceptions.

A. Express Breach of Contract Claim

The Board’s interpretation of a government contract is a question of law, reviewed de novo. Forman v. United States, 329 F.3d 837, 841 (Fed. Cir. 2003); Interstate Gen. Gov’t Contractors, Inc. v. Stone, 980 F.2d 1433, 1434 (Fed. Cir. 1992). The interpretation of a contract begins with the language of the written agreement. NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); see also Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1375 (Fed. Cir. 2004) (“When construing a contract, a court first examines the plain meaning of its express terms.”). We consider the contract as a whole and interpret it to harmonize and give meaning to all of its parts. Id. “[I]n view of the Board’s considerable experience and expertise in interpreting government contracts, its interpretation is given careful consideration.” Interstate Gen. Gov’t Contractors, 980 F.2d at 1434.

Agility argues that the government expressly breached the contract by using its trucks for storage purposes. Agility invokes Mod. 1, Paragraph 4, which states that Agility’s trucks “will not be used at the sites for storage purposes.” Pub. Warehousing Co., 15-1 BCA ¶ 36,062, 176093. According to Agility, this clause was not altered by Mod. 27 and therefore creates an actionable breach of the contract because the government did use trucks as storage on multiple occasions. Agility contends that Mod. 27 did not affect Mod. 1, Paragraph 4, because Mod. 27 dealt only with “transportation fees” and therefore only affected non-storage delays. Agility asserts this reading would allow Paragraph 4 and Mod. 27 to exist simultaneously, which would give full meaning to all terms in the contract. See Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991).

The plain language of the modification belies Agility’s argument. Paragraph 2.e. of Mod. 27 explicitly states, “[t]he maximum number of allowable trip days is 29. The Government will not pay transportation fees beyond this established maximum.” Pub. Warehousing Co., 15-1 BCA ¶ 36,062, 176100. Paragraph 3 then states that the government would only pay fees for days beyond the established mínimums (i.e., more than 4, 5, or 10 days, depending on the part of Iraq serviced) if “the delay is customer caused; i.e. Hub, DFAC or MKT not having the capability to off load and return the truck.” Id. The Board found these two provisions, acting together, evidence an agreement between the parties that the government only would pay transportation fees subject to a 29-day cap. The number of days for which the government would pay fees, moreover, would accrue only if the government caused the delay, such as when a location could not offload and return a truck because of a lack of cold storage at that location. Because the language of Mod. 27, Paragraphs 2 and 3, included storage delays within the meaning of government-caused delays for transportation fees and then set a 29-day cap on the payment of transportation fees, the language of Mod. 27 abrogated any remaining significance of Mod. 1, Paragraph 4.

Because we determine that the language of Mod. 27 is not ambiguous, we need not resort to extrinsic evidence to analyze the meaning of the contract. See Schism v. United States, 316 F.3d 1259, 1278 (Fed. Cir. 2002) (explaining that the parol evidence rule bars a party from interpreting a contract with extrinsic evidence that conflicts with the language of the contract); see also McAbee Constr. v. United States, 97 F.3d 1431, 1434 (Fed. Cir. 1996) (explaining that partially integrated contracts only allow for the introduction of extrinsic evidence to supplement a contract with additional terms consistent with the plain language of the contract); Restatement (Second) of Contracts §§ 215-16. Even if we were to consider extrinsic evidence regarding the meaning of Mod. 27, however, the evidence and the Board’s unchallenged factual findings further support the Board’s reading of the contract.

For example, despite the Mod. 1, Paragraph 4, requirement that the government not use the trucks for storage, some sites that lacked adequate storage capacity regularly kept supply trucks onsite to use them for storing food. Pub. Warehousing Co., 15-1 BCA ¶ 36,062, 176095-96. The average truck turnaround time for reefer trucks during the time period of Mod. 2 was between 13-24 days, but some trucks that the government used for storage stayed in Iraq for much longer, with at least two exceeding the 100-day mark. See id. at 176098. Under the transportation fee pricing structure of Mod. 2, the government paid for all delays caused by the use of the trucks for storage. See id. Some of the individual trips resulted in total payments of $99,445; $82,030; $65,905; and $63,325. Id.

Ford testified that the government never envisioned paying the costs it did under Mod. 2 and became unhappy with those costs. Id.' at 176098. Ford believed a change was necessary to the fee structure because the government was “in the business of paying for deliveries” not “in the business of paying for a truck.” Id. Ford therefore sought another modification to the contract that would share the risk between the parties of longer trips; this effort resulted in Mod. 27 and its 29-day cap on transportation fees. See id. at 176098-100. Ford also testified that the 29-day cap was necessary to pay for Agility’s expansion of the TLO program, which resulted in Mod. 27, Paragraph 1, increasing the maximum number of TLO team members from 25 to 94. Id. at 176098.

During negotiations between the parties prior to the signing of Mod. 27, Switzer emailed Ford to express “real reservations about the maximum cap being unqualified.” Id. at 176099. Despite these reservations, the parties signed Mod. 27 with the 29-day cap in place. Id. at 176099-100. After the parties signed Mod. 27, Switzer sent an email to Ford and others expressing concern that there was ‘the makings of a problem with the new Transport Mod that limits our billing for only 29 days.” Id. at 176102. The Board found that Switzer’s “acknowledgment that Mod. 27 limited [Agility’s] billing ‘for only 29 days,’ and that Mod. 27 %a[d] the makings of a problem’ reflected his understanding at the time that Mod. 27 provided no relief just because trucks did not return in 29 days.” Id. Later emails from Switzer regarding the government’s desire to extend the contract include statements that Agility (1) could not “take lightly the effects of Mod 27’s limitation on the transport charges,” and (2) requested “the 29 day transport limitation rule for Iraq be rescinded.” Id. at 176103.

As shown by the extrinsic evidence, the government paid for trip days caused by storage delays under the fee structure of Mod. 2. The parties then replaced this fee structure with Mod. 27, which included the 29-day cap on fees. The government and Agility understood Mod. 27 imposed a 29-day cap that was “unqualified” in applying to all government-caused delays, including storage delays. The evidence therefore shows that the parties’ actions under Mod. 2 and Mod. 27 amended the requirement in Mod. 1, Paragraph 4, that the government not use the trucks for storage purposes. Although Agility understandably might have wished to escape from Mod. 27 and the 29-day cap’s application to storage delays upon experiencing its impact, “[a] contractor must stand by the words of his contract.” Upton v. Tribilcock, 91 U.S. 45, 50, 23 L.Ed. 203 (1875).

The plain language and extrinsic evidence support the Board’s interpretation that the terms of Mod. 27 replaced any remaining vitality that Mod. 1, Paragraph 4, had at the time of Mod. 27’s signing. Mod. 27’s imposition of a 29-day cap on all transportation fees resulted in the parties sharing the risk of travel times rather than having the government shoulder the burden alone. Because the government did not breach the contract by failing to pay for days beyond the 29-day cap, even when delays beyond the 29-day cap were caused by use of the trucks for storage, we affirm the Board’s decision as to Agility’s express breach of contract claim.

B. Claims for Exceptions to Mod. 27

Although Agility agreed to the 29-day cap in Mod. 27, it claims that it did so with the understanding that it could submit exceptions to the cap if the government caused delays beyond the 29-day cap. But neither Agility nor the government ever added or insisted on language in Mod. 27 regarding exceptions to the 29-day cap. Instead, Agility bases this argument entirely on a few lines in an email exchange.

In a series of emails, Switzer expressed concerns about the 29-day cap and stated that Agility “would prefer to have the ability to submit exceptions to the 29 day rule if the situation is unavoidable despite our best efforts to prevent it.” J.A. 3041. Ford’s reply email does not show a direct agreement with Switzer’s request; instead, Ford cites a discussion with Switzer from earlier that day and states, “exceptions to the 29 day rule will only be considered in the form of a claim.” J.A. 3040. Ford then requested, “[pjlease sign and return the attached mod or advise if additional changes are required.” Id.

According to Agility, this email chain amounts to an agreement by the government to make exceptions to the 29-day cap as long as Agility provided documentation to show that the government caused the delay beyond the 29 days. The plain terms of the email, however, indicate that the government merely agreed to consider any exceptions to the 29-day cap. The government did not agree to Agility’s offered terms; it counteroffered, and Agility accepted the counteroffer when it returned a signed copy of Mod. 27 without additional changes. See Restatement (Second) of Contracts § 59 (Am. Law Inst. 1981). The agreement to consider exceptions is not inconsistent with the clear intent of the 29-day cap to share the risk of delays; indeed, it would be entirely inconsistent for Ford to agree in a single line in an email to grant every exception submitted by Agility for delays caused by the government after she insisted on the 29-day cap for fees and rejected Agility’s attempts to lift the cap.

Mod. 27, moreover, specifically states that “[t]he ‘additional days beyond the established minimum’ fees are only applicable if the delay is customer caused.” Pub. Warehousing Co., 15-1 BCA ¶ 36,062, 176100 (emphasis added). Agility argues that the government would have to pay for any government-caused delays beyond the 29-day cap, but the government, under Mod. 27, already had to cause the delays for Agility to receive any fees beyond those laid out for minimum trips. Agility’s reading of the email agreement would eviscerate the 29-day cap and ignore the government’s purpose in implementing the cap. Agility agreed to the 29-day cap for fees, and it cannot escape that clause now by having the exception swallow the rule.

The Board’s uncontested factual findings further support this result. The Board found that Ford considered the 29-day cap, which was “about twice the average 15-day truck return time experienced at the time” to be “more than generous.” Id. at 176101-02. The Board also found that Ford “offered to leave the door open for claims in the event the 29-day cap caused [Agility] such economic hardship to the point where its ability to continue performance under the contract was threatened.” Id. at 176102. The Board further found that “Mod. 27 provided no relief just because trucks did not return in 29 days,” id., and “Switzer understood that CO Ford’s willingness to consider granting a claim was a matter of discretion given the right circumstances and not a matter of contract right,” id. at 176103. Switzer’s own email even recognized that Agility had “no guarantee of being paid” when submitting a claim. Id.

Given these uncontested factual findings and the plain meaning of Ford’s email, the government only agreed to consider claims submitted by Agility for exceptions to the 29-day cap. As discussed by the Board, the government accepted the claims filed by Agility, considered the claims, and then denied the claims for failing to meet the requirements under which the government would grant an exception. See id. at 176105-06, 176112-13. Finding no error in the Board’s judgment on this issue, we affirm the Board’s denial of Agility’s claims relating to exceptions to the 29-day cap. But Ford’s recognition that some relief beyond the 29-day cap might be appropriate is not irrelevant. As discussed below, it relates to the parties’ obligations to carry out their own contractual duties in good faith.

C. Implied Duty Claim

An implied duty of good faith and fair dealing exists in government contracts and applies to the government just as it does to private parties. Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005). The duty to cooperate is an aspect of the implied duty of good faith and fair dealing. Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 820 n.1 (Fed. Cir. 2010).

The Board’s decision contains no reasoning specific to the implied duty claim. Instead, the Board stated that it “need not decide whether the government ... breached its implied duty of cooperation. At its core, whether the government breached the contract comes down to contract interpretation.” Pub. Warehousing Co., 15-1 BCA ¶ 36,062, 176110. Agility argues that the Board erred in treating the implied duty claim as being subsumed within an analysis of the express terms of the contract. According to Agility, the Board’s failure to address the implied duty claim leaves fact-intensive questions unanswered, such as whether the government had an implied duty to cooperate in returning Agility’s trucks or failed to cooperate by not diligently obtaining storage. Agility also asserts that the proper damages measure for a potential breach of an implied duty by the government should not be tied solely to the contract’s specified transportation fee.

The government attempts to save the Board’s failure to address the merits of the implied duty claim by arguing that the Board’s existing analysis suffices. The government argues that it acted in conformance with the requirements of the contract because Mod. 27 covered any delay, including those caused by a lack of storage facilities, in excess of 29 days.

It is true that a party to a contract cannot use an implied duty of good faith and fair dealing to “expand [another] party’s contractual duties beyond those in the express contract or create duties inconsistent with the contract’s provisions.” Metcalf Constr. Co. v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014). But a “breach of the implied duty of good faith and fair dealing does not require a violation of an express provision in the contract.” Id. at 994. A party might breach this implied duty by interfering with another party’s performance or acting in such a way as to destroy the reasonable expectations of the other party regarding the benefits provided by the contract. Centex, 395 F.3d at 1304; see also Restatement (Second) of Contracts § 205 cmt. d (identifying possible breaches of the implied duty of good faith and fair dealing as including “evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance”).

As addressed above, the government abided by the express terms of the contract under Mod. 27. But the government may have breached its implied duty of good faith and fair dealing by, inter alia, interfering with Agility’s ability to perform its duties under the contract by unnecessarily delaying the return of Agility’s trucks and not increasing its on-site food storage capabilities. See Centex, 395 F.3d at 1304; Restatement (Second) of Contracts § 205 cmt. d. In other words, if the government simultaneously imposed a cap and engaged in conduct that made it impossible for Agility to perform within that cap, the government may have breached its implied duties to Agility. Indeed, Ford’s acknowledgment that circumstances might warrant payments above and beyond the 29-day cap appears to be a tacit recognition of this possibility. And the parties’ discussions at the Summit leading up to Mod. 27 reflected both the government’s cost concerns and Agility’s need for the government’s assistance in assuring the timely return of its trucks. The Board therefore erred in concluding that it “need not decide” this issue based on its interpretation of the terms of the contract.

Because the Board erred by failing to analyze the implied duty claim, we vacate the Board’s decision as to that claim. We provide no opinion as to the merits of Agility’s claim; the Board shall consider in the first instance whether Agility has proven that the government breached its implied duty of good faith and fair dealing. If appropriate, the Board also can consider in the first instance whether Agility has provided evidence to support a damages theory separate from the contract’s specified transportation fee.

D. Constructive Change Claim

The government constructively changes a contract to which it is a party when “a contractor performs work beyond the contract requirements without a formal order, either by an informal order or due to the fault of the Government.” Int’l Data Prods. Corp. v. United States, 492 F.3d 1817, 1325 (Fed. Cir. 2007). To demonstrate that the government has constructively changed the terms of a contract, “a plaintiff must show (1) that it performed work beyond the contract requirements, and (2) that the additional work was ordered, expressly or impliedly, by the government.” Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014).

The Board’s treatment of the constructive change claim suffers from the same shortcomings as its treatment of the implied duty claim: the Board similarly concluded that it “need not address” the constructive change claim based on its interpretation of the contract. Pub. Warehousing Co., 15-1 BCA ¶ 36,062, 176110. The government argues that the Board’s analysis as to Mod. 27 shows that the government did not constructively change the contract. But Agility contends that the government constructively changed the contract by increasing, rather than decreasing, those instances where Agility’s trucks were forced to stay on site to provide storage for the MKTs. The Board never addressed this contention, concluding, again, that “whether the government breached the contract comes down to contract interpretation.” Id. (emphasis added). A change of a contract by the government, however, may or may not constitute a breach of contract, depending on the circumstances. This is so even when there is no express breach of the contract terms. See Bell/Heery, 739 F.3d at 1335 (distinguishing between constructive changes and cardinal changes by noting that, among other things, a cardinal change “amounts to an actual breach of contract”). The Board, by its own admission, did not address the constructive change claim.

The government again tries to save the Board’s failure to address the constructive change claim by arguing that the Board’s analysis regarding the interpretation of the contract applies with equal force to the constructive change claim. But, “on the basis of the Board’s opinion in this case, we cannot determine whether it properly rejected” the constructive change claim because it failed to provide any analysis of the claim. Charles G. Williams Constr., Inc. v. White, 271 F.3d 1055, 1060 (Fed. Cir. 2001) (vacating an Armed Services Board of Contract Appeals decision because the opinion failed to address an issue adequately); see also Heyl & Patterson, Inc. v. O’Keefe, 986 F.2d 480, 484 (Fed. Cir. 1993) (quoting Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)) (determining that the court “would be without authority to affirm” on a basis not addressed by the Board because the Board’s decisions must be upheld, if at all, on the basis articulated by the Board), overruled on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995).

Because the Board did not address Agility’s constructive change claim, we vacate the Board’s decision as to that claim without expressing any opinion as to its merits. On remand, the Board should consider in the first instance whether the government constructively changed the contract.

III. Conclusion

For the foregoing reasons, the decision of the Board is affirmed in part, vacated in part, and remanded for further proceedings.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

Costs

No costs.

      . Switzer did not testify during the appeal to the Board. Id. at 176101 n.5. The Board therefore looked to the email communications between Ford and Switzer, along' with the testimony from Ford — who was "extensively cross-examined by [Agility] counsel” — to determine the meaning of Mod. 27. Id. at 176101.