Can The Us Government Infringe A Us Patent
Astornet Technologies Inc. v. BAE Systems, Inc., F.3d –
Although a patentee can sue the U.S. government for unlicensed use of its invention, Congress requires that those cases be filed in the Court of Federal Claims rather than in district court. No jury trial is available, and the only remedy is a reasonable royalty.
The statute also protects companies doing work for the U.S. providing cover by limiting the cause of action.
Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owners remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.
28 U.S.C. § 1498. The common interpretation of this section is when the U.S. government is using the invention that the only action is against the US. Here, the patentee sued several private companies for inducing the TSA to infringe its airport vehicular gate control patent. US Patent No. 7,639,844. On appeal, the Federal Circuit confirmed that the inducement theory does not avoid the coverture of 1498.
Government appellate brief.
The outcome here is that the dismissal is affirmed.
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In the patent arena, the U.S. Congress has set rules for the federal government that differ from those that apply to everyone else. When a patent is infringed for the benefit of the government, the patentee may have rights but cannot sue to stop the infringement. The governments needs are deemed to override proprietary rights as a matter of public policy.
In the United States, this principle was established in 1918 by an act of Congress that allowed contractors to furnish the government with needed provisions during World War I without fear of becoming liable to patent owners for infringement. The Supreme Court noted this historical background in Richmond Screw Anchor Co. v. U.S. . Today the General Agreement on Tariffs and Trade permits governments to grant compulsory licenses under certain circumstances, and the United States and many other countries do so.
Under current U.S. federal regulations , of the U.S. Code), the only remedy available to a patentee whose patented product or method is used for the Government is to sue the government for reasonable royalties in the United States Court of Federal Claims in Washington. A patentee cannot sue a private party for contracting to provide infringing goods to the government, cannot recover lost profits, and cannot obtain enhanced damages for willful infringement, as it might under other circumstances.
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How Are Royalty Payments Determined
Royalty payments to inventors are processed two times in the calendar year. The first payment is typically made between late May to mid-June. The second payment is made between late October to early November. Inventors receive the first $2,000 received from a licensee. Next, they receive 15 percent of royalties received above $2,000 up to $50,000. Finally, they receive 25 percent of royalties in excess of the first $50,000 received each year. Each inventor cannot receive more than $150,000 in royalty payments for a calendar year.
What Is The Purpose Of Research Agreements
Research agreements promote collaboration and sharing of materials among colleagues. Research agreements are formal contracts that define the role of each party during a collaboration or limit the use of reagents. Establishing research agreements ensures clear intellectual property ownership and supports paperwork required for patent filing.
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Thoughts On Can The Us Government Infringe A Us Patent
The Governments amicus argument re infringement was not directly addressed by the CAFC. Section 1498 is a conditional waiver of sovereign immunity, which allows patentees to sue the US for unauthorized use of their patents. Consequently, it does not shield the US from 271, which states that whoever uses a patented invention without authorization infringes the patent. Section 1498 also limits a patentees remedies for such use by excluding non-government parties from any action and conferring exclusive jurisdiction on the Court of Claims. Therefore, whether induced infringement may be supported by direct infringement by the US is a moot point.
The government argues that the U.S. government should never be seen as an infringer but rather as a sovereign who has agreed to offer compensation for its use of someone elses patents. The logical result for this case would be that there cannot be any inducement liability because there was no infringement.
> I believe an analogous argument was also made in the Akamai line of cases: you never get to these other indirect infringements because theres no underlying infringement.
Is it just semantics to define the use by the sovereign as not infringement?
There is a quote by Abraham Lincoln about the relative position of the people and their government that might be worth keeping in mind in this context.
One particularly apt for Ned at that
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Benefits Of Getting A Patent
- Prevents theft of your invention
- The freedom of exclusivity
- Easy to build a merchandise and commercialize
- Higher market share since your idea becomes a brand
- More monetary value and higher profit margins
Although the entire process of filing a patent is long and complex, one must remember the importance it has. With digital advancements, it is probable that the process might get simplified and easy.
Having a patent in place ensures that no individual can claim rights over your invention. If at all there happens to be an infringement, you can take help from legal bodies and avoid the problems that can prove to be a hurdle in your growth.
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Ip Professionals Patent Agent
Understanding patent law and going through the patent process can be complex. Consider hiring a patent agent to help you navigate through it all. Just remember to factor in the associated costs.
What can a patent agent do for you?
- Assess your invention
- Conduct research
- Assist in writing the application with appropriate technical language
- Represent you
CIPO provides a list of registered patent agents who are authorized to represent applicants before the Office.
Note: CIPO cannot recommend any particular agent for you.
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Revise Your Patent Portfolio
Consider the following tips to effectively manage and increase the value of your patent portfolio:
- Regularly evaluate your individual patents and align each one with your current business goals. Identify those that fall outside of these goals.
- Consider selling under-utilizedor unused patents to free resources, as maintaining such rights can get expensive.
- Consult with technology or industry experts before selling any of your patents or letting them expire.
Do I Need To Care That The Invention My Company Is Licensing Was Funded By The Government
Congratulations. Youve identified a new chemical compound that when combined with your current technology shows powerful results in early laboratory tests. The invention is protected by patents owned by a university and none of your competitors have claims on the intellectual property because it was funded with federal grants.
Your conversations with the technology transfer office at the university have been promising they are interested in licensing the technology to your company on financial terms that are a pleasant surprise. You cant help but wonder where the catch is. And then the license agreement arrives.
You notice some strange provisions, which seem to limit your rights to the technology. The agreement says that the U.S. government retains a license to practice the invention worldwide. It also states that the government can require you to grant licenses to third parties. It even states that you must manufacture products covered by the patents substantially in the United States, whatever that means. This is not exactly what you had in mind when you were negotiating for exclusive rights to the technology.
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What Are Research Collaboration Agreements
RCAs are a collaborative exchange of materials and/or confidential information to support a mutual research project. These agreements outline specific goals, how the parties will interact with each other, and may also define IP ownership, patent filing responsibilities, and other issues related to technology transfer.
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How Does The Enactment Of Aia Impact Cdc Researchers
- The new first to file system ensures that whoever files the patent application first gets the patent. CDC investigators will need to disclose the invention after conception so their ability to patent the technology is not lost.
- Filing of a provisional application can no longer secure an earlier priority date unless it is fully detailed. CDC researchers must fully disclose the invention to TTO to ensure that all aspects of the invention are described in the application. If the invention is not fully described in the provisional, inventors will lose the benefit of the early filing date and possibly an opportunity to patent the invention.
- The one year grace period to file a patent after public disclosure only protects inventions that were publically disclosed by the inventor. Public disclosure can destroy the patentability of an invention. CDC researchers need to contact TTO before any form of public disclosure and also exercise caution when working with collaborators.
- AIA created two procedures for challenging granted patents. It is highly recommended that CDC researchers keep detailed records of their lab activities, discussions, and ideas that can be instrumental in proving inventorship should it be challenged.
Inventions Of Federal Employees
Under federal law, protection rights of an invention created by federal employees will be in government hands if the invention was:
- Made using government resources, which can include funding, equipment, documentation, information, etc. or
- Connected to the inventors official duties.
If the government doesnt want to step in to file the patent application, then the appropriate department officials will need to permit the employee to do so. Even if the above criteria arent met, as a federal employee and inventor, you may still owe the government other rights, including royalty fees, non-exclusivity, etc. If, however, the government does in fact step in and take over the patent application for your invention, you will still earn roughly 15% of the profit from that invention.
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Applications Of Section 1498
Under the Patent and Trademark Law Amendments Act of 1980 , patents granted on inventions developed with the use of government funds can be exclusively licensed to promote their commercialization, but the government retains the ability to ‘march in” if the patented technology is not made available to the public on reasonable terms.
Us Jurisdiction Report: The Lawful Seizure Of Patent Rights
11-01-2021
This article examines a rare tension between US patent rights, on one hand, and the governments seizure right of eminent domain over patents, on the other. It is the COVID-19 pandemic that gives rise to this possibility.
Inventors and the companies they work for rely upon the US governments promise that their ownership and the enforcement of their patent rights will not be disturbed or interrupted. Patents carry with them for their life a lawful monopoly and enforcement rights against infringers.
That said, the US government also possesses a very powerful, if rarely used, right: the right of eminent domain over patents. The term eminent domain is most familiar to the lay public regarding real estate property, where it is recognised to include the right of the government or its agent to expropriate private property for public use, with payment of compensation. What is not commonly known is that, where appropriate, it can also be used over patents.
In 1949, the US government became authorised under codified title 28 of USC section 1498 to exercise eminent domain over patents. This law can be triggered whenever the US government either practises a patented invention or authorises a contractor to do so on its behalf. Section 1498 actions can be exercised whether or not the subject inventions were developed and patented under US government funding.
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Inventions Of Government Contractors
Independent contractors fare better. Federal agencies might waive patent rights when entering into government contracts. If, however, you are a direct contractor with the federal government , then youll want to bring this up during the onboarding process so that you are aware of any hurdles youll have to go through.
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Can I Forbid The Government From Using My Patented Invention
I’ve filed a patent on a certain technology for facial recognition/analysis, and as the patent holder I want to use my exclusivity to ensure it’s not used to harm anyone. Unfortunately, the nature of the invented technique can be easily misused for what I believe are evil purposes. Military, then law enforcement agencies, have begun connecting me with manufacturers who want to incorporate my technique into their software suites, to which I am firmly opposed. Mind, the patent is still in review, so getting inquiries this soon strikes me as odd.
My question is, can I deny the military use of my invention should the patent be approved, and if not, are there any ways in which I can sabotage or otherwise render it difficult for them? Perhaps by requesting an impractically large royalty or purposely presenting a subtly faulty implementation to their manufacturing firm?
