Patent recourse via government redistribution

Posted Apr 26, 2011 21:03 UTC (Tue) by david.a.wheeler (subscriber, #72896)
In reply to: Patent recourse via government redistribution by rahvin
Parent article: A victory for the trolls

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".

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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).