Samuel J. Petuchowski
April 15, 2010
- A d v e r t i s e m e n t
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 government’s 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. (1928). 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 (found at Title 28, Section 1498(a), 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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