While it isn’t possible to sue a state government for patent or copyright infringement due to the protections of the Eleventh Amendment, it is possible to sue the federal government for infringement. This is due to 28 U.S. Code § 1498, which waives the United States’ right to sovereign immunity and grants individuals and private entities the right to sue for infringement damages:
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 owner’s remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.
However, there are a few limitations and quirks when it comes to suing the federal government. For starters, you cannot file suit in a district court, but instead have to sue the government through the U.S. Court of Federal Claims. Secondly, patent infringement suits can only be ruled on by judges—they cannot be heard in front of a jury.
While it may sound impossible to win a patent or copyright case against the government, it does happen.
In 2016, SecurityPoint Holdings sued the Transportation Security Administration, alleging that the TSA infringed upon its patent for a cart used to transport security screening trays.
The TSA didn’t dispute that it had duplicated SecurityPoint’s design. Instead, it took the position that the cart system could be implemented by any skilled artisan, thus rendering the patent obvious and void.
However, the judge ultimately found that while the invention was simple and was composed of a combination of simple items, that it was only a simple design in hindsight, and thus wasn’t obvious. The argument for the non-obviousness of the patent was bolstered by the fact that using the cart system resulted in an 80% increase in efficiency, which quickly led the TSA to implement the system nationwide.
In a previous article on proving non-obviousness, we noted that one of the key ways of demonstrating that an invention is patent-worthy is by showing that it has non-obvious, unexpected benefits. As noted in a classic patent case, “Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected beneficial results are evidence of unobviousness thereof.” In this case, using the invention resulted in a significant increase in efficiency. In addition, the cart system also reduced employee injuries, and was found to have remedied efficiency issues that the TSA’s own experts had failed to solve.
In short, while the prospect of filing a patent or copyright infringement suit against the government is a daunting task, once the case makes it to court, you can be assured that the case will be judged on its merits, just like any other patent case. But it is important to keep in mind that it’s highly unlikely you’ll win your case without the insight of an experienced patent attorney.