Patent recourse via government redistribution

Posted Apr 26, 2011 3:02 UTC (Tue) by ccurtis (guest, #49713)
Parent article: A victory for the trolls

Sticking my little toe into the patent pond here ...

Does the U.S. government redistribute Linux anywhere (mirror.anl.gov perhaps)?

If so, what are the implications around this fact, 28 USC 1498 (which allows the government right to any U.S. patent without payment to the holder), and the patent grant section 6 of the GPL v2?

Can the argument be made that people getting Linux from government sites are thereby entitled to whatever license the government is using in order to not be beholden to the patent troll?

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Patent recourse via government redistribution

Posted Apr 26, 2011 3:53 UTC (Tue) by jspaleta (subscriber, #50639) [Link]

Careful. The government's right to use may not extend to cover the government's right to redistribute. And then we get into the question of whether the government must comply with copyright laws which underpin the GPL language. It's an interest thought, but I don't think you can count on it as a defense for non-governmental use until that argument has been found valid in a court of law. I'm not aware of any court precedent which would suggest that such an argument has been found valid in any other context so far.

-jef

Patent recourse via government redistribution

Posted Apr 26, 2011 4:02 UTC (Tue) by wahern (subscriber, #37304) [Link] (4 responses)

(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.

Patent recourse via government redistribution

Posted Apr 26, 2011 4:13 UTC (Tue) by rahvin (guest, #16953) [Link] (3 responses)

It's been a long time since I looked but I thought I remember other sections in the US code that allowed the US military free use of any invention, patented or otherwise with or without compensation entirely at the discretion of the military. I can't remember the sections or the quotes but I thought it was in the sections governing the military.

Patent recourse via government redistribution

Posted Apr 26, 2011 21:03 UTC (Tue) by david.a.wheeler (subscriber, #72896) [Link] (2 responses)

I don't think that's true at all; the U.S. military DOES have to pay attention to patents. There's a LOT of stuff involving patents and the military that might be related to what you're thinking about, so I'm not sure what you're alluding to.

You might be referring to title 10's section 2354. Contracts: indemnification provisions. There it says that "With the approval of the Secretary of the military department concerned, any contract of a military department for research or development, or both, may provide that the United States will indemnify the contractor against either or both of the following, but only to the extent that they arise out of the direct performance of the contract...". But notice that this is NOT blanket permission. Instead, this transfers risk from the contractor to the government. ALSO note that only happens when the Secretary of a military department approves; this is NOT a routine grant.

The Defense Federal Acquisition Regulation Supplement (DFARS) is the master instruction book and template set for most Department of Defense (DoD) acquisitions; take a peek there to see what you have in mind. You especially want to look at part 227 ("PATENTS, DATA, AND COPYRIGHTS"). There's a LOT there, but usually if you take government money to build something and there's a patent, the government gets a right to use the patent for government purposes. It's a LOT more complicated than that, but even so, it's not the case that "the military can ignore patents".

Clarification

Posted Apr 26, 2011 21:11 UTC (Tue) by david.a.wheeler (subscriber, #72896) [Link] (1 responses)

What I meant in my previous post was that if (1) a contractor takes government money to build something, and (2) the contractor patents an invention in the course of that contract, then the government typically gets a patent license to use it for government purposes. For example, the stock clause 252.227-7038 "Patent RightsOwnership by the Contractor (Large Business)" item (d)(2) says, "If the Contractor retains ownership of any subject invention, the Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or have practiced for or on behalf of the United States, the subject invention throughout the world." There are other clauses that may be used instead, depending on the circumstance, but let's use that one for now.

I hope that makes sense. Basically, if the government pays someone to do some work, then the government gets a number of rights on the result. It's way more complicated that this; I'm trying to simplify something rather complicated. I am not a lawyer (IANAL)!

Clarification

Posted Apr 26, 2011 22:27 UTC (Tue) by rahvin (guest, #16953) [Link]

That's what I remember was that section, I remember a discussion about how the government could buy a single patented invention then use that invention in some top secret skunk works project without worrying about an infringement claim. Although this makes me wonder if they don't pay and just not tell the companies what it's for.

It's sort of like the following story. My wife's family is from Lincoln county Nevada. Area 51 is in Lincoln county and it's a very small county (population wise that is). Business and professional taxes are levied by the county on any business operating within the county. The county was aware that there was commercial activity taking place at Area 51 airbase by sub-contractors and began making inquires with the Air Force about lack of payment of the required taxes. As you may be aware the US government denies there is a facility called Area 51 or any facility located in the area generally known to be Area 51. Well the end result of the counties inquiries was that the they received a check for a bit more than a million dollars with no identifying information on where the check came from or what is was for. The county presumed it was the back taxes due and dropped the issue (probably after receiving a few unofficial phone calls saying the same).

Patent recourse via government redistribution

Posted Apr 26, 2011 4:08 UTC (Tue) by rahvin (guest, #16953) [Link]

There is no explicit patent transfer under GPL2, whether the clause in GPL3 would count as an official transfer is debatable. The key point I guess would be that as I read the US code the Government's key to the patent office only applies to the government. In other words, even if the government uses a patented invention you can't sue them for infringement, it's essentially a governmental immunity. Even if the government redistributes they aren't transferring a patent grant so regardless of what the license says you couldn't use it as a work around.