Patent recourse via government redistribution
Posted Apr 26, 2011 4:02 UTC (Tue) by wahern
In reply to: Patent recourse via government redistribution
Parent article: A victory for the trolls
(a) 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. ...
This doesn't grant the government a license. All it does is define the terms upon which it allows itself to be sued. Otherwise sovereign immunity would preclude the ability to sue the government, regardless of whether your claim was with merit. With rare exceptions--4th Amendment Takings, so-called Bivens Actions for 5th Amendment violations, etc--you cannot sue the government, even if what it's doing is illegal, unless the government passes a law specifically submitting itself to suits. The same concept of sovereign immunity applies to States, except it gets messier because of Federalism issues. Sovereign immunity is the rule the world over, more-or-less. Immunity doesn't imply the immune person is in the right, only that they're untouchable.
Without knowing anything specific about the case law, it would seem to preclude injunctions, but clearly not monetary relief. And I see no implication here that a private entity would be protected except in so far as they're acting as an agent of the government:
... For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States.
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