(this is a purely hypothetical situation, for literary research)

I've filed a patent on a certain technology for facial recognition/analysis, and as the patent holder I want to use my exclusivity to ensure it's not used to harm anyone. Unfortunately, the nature of the invented technique can be easily misused for what I believe are evil purposes. Military, then law enforcement agencies, have begun connecting me with manufacturers who want to incorporate my technique into their software suites, to which I am firmly opposed. Mind, the patent is still in review, so getting inquiries this soon strikes me as odd.

My question is, can I deny the military use of my invention should the patent be approved, and if not, are there any ways in which I can sabotage or otherwise render it difficult for them? Perhaps by requesting an impractically large royalty or purposely presenting a subtly faulty implementation to their manufacturing firm?

  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Aug 19 at 2:32
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    The only way to stop the government from using your invention is to not invent anything they would want to use. – EvilSnack Aug 19 at 17:10
up vote 51 down vote accepted

You cannot deny the federal government the right to use your patent, but you can sue them for "recovery of [your] reasonable and entire compensation for such use and manufacture", see 28 USC 1498. Note that the statute refers to such use as being "without license of the owner thereof or lawful right to use or manufacture the same", that is, there is no lawful right to infringe on a patent, but recourse for infringement is highly limited. A suit against the government under §1498 is (see the summary in Airborne Data v. US, 702 F.2d 1350) on an eminent domain theory. It has been long established that the right under eminent domain is only constitutionally limited by the requirement for compensation, so there is no need to say "and you may not seek an injunction". Para (b) which was added later may have explicitly limited jurisdiction to the Court of Federal Claims. There has been inconsistency in the court's interpretation of the jurisdiction requirement (Leeson v. US, vs. Manville Sales v. Paramount, 917 F.2d 544), though precedent has been that the Court of Claims has jurisdiction. Para (b) makes that explicit.

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    Additionally, if you are employed by the government and your patten was obtained for something you developed and were paid for by the Government, it belongs to the government. – hszmv Aug 15 at 15:58
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    @DonQuiKong Not unless you can find something in US law that explicitly says a patent holder can enjoin the United States from using a patent. By default you can't take action the US as it's a sovereign entity. The same would apply to the States but US law makes it explicit that "Any State [...] shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity." 35 U.S. Code § 271(h). law.cornell.edu/uscode/text/35/271#h – Ross Ridge Aug 15 at 17:38
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    If the work was a result of a Government contract, terms apply. "Generally, pursuant to 35 U.S.C. 202 and the Presidential Memorandum and Executive order cited in paragraph (a) of this section, each contractor may, after required disclosure to the Government, elect to retain title to any subject invention." However usually "The Government shall have at least a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or have practiced for or on behalf of the United States, any subject invention throughout the world." – user71659 Aug 15 at 19:56
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    So what you're saying is, you can't stop the government from using it, but you can demand they pay for it? – Benubird Aug 16 at 8:41
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    @ChrisW Not selling a physical product is different from trying to enforce a patent. Those states could presumably manufacture the drugs themselves if they wanted to and had the capability (somewhat analogously, the government of India can allow generic manufacturers to make various patented drugs, but they can't force, say, Pfizer, to sell drugs to them) – mbrig Aug 16 at 19:14

Can you prevent the government from using your patent? The opposite is actually true.

If you patent something, and it is felt to be potentially of national security interest, then they can take your invention for the nation, produce it, and prevent you producing it or sharing the design indefinitely (though it will be reviewed annually). This has happened to about 5000 patents so far.

https://www.wired.com/2013/04/gov-secrecy-orders-on-patents/

Even where it is not of national security interest, and the government (or its contractors!) is not using it directly as covered in user6726' answer, they can still take your patent under the equivalent of eminent domain... well, I'll quote from http://patentplaques-blog.com/eminent-domain-excercised-on-patents/

During World War I, the military took all patents relevant to wireless technology and put them in a mandatory licensing pool. Anyone was then able to use the patents and the patent holders received royalties. The pooling of the patents led to innovations including the mass production of vacuum tubes and a national FM radio network.

So, in short, the government can use your invention for its own purposes; it can prevent you from using it; and it can force you to give it to others.

They don't do this too often, but if you're working in an area that you think will be of especial interest to them, it's something to be aware of. In general, they will compensate you somewhat for your trouble, but not as much as the open market could have.

The Paris Convention for the Protection of Industrial Property allows countries to issue compulsory licences when patent holders abuse their patent rights. This specifically includes preventing the use of the invention or unduly limiting it's use.

(2) Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work.

...

(4) A compulsory license may not be applied for on the ground of failure to work or insufficient working before the expiration of a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last; it shall be refused if the patentee justifies his inaction by legitimate reasons. [...]

"Work" in this context means producing or importing the invention.

While the US in particular has no working requirement for patents, user6726's answer shows it's not possible to stop the US government from using your patent. (As both US and foreign patent holders are denied this remedy, it doesn't violate the Paris Convention.) Other governments will either be able to rely on the working requirements or special national interest or security exceptions. Patents are supposed beneficial for countries, not weapons used to deny some technology, so every country is going to have some means to prevent this. Worst case they can always amend their laws if it's important enough.

Moreover, in the US injunctions for patent violations aren't automatic, so you may not be able to stop non-government entities from using your patent for "evil" purposes. For example, in MercExchange, LLc v. eBay, Inc the courts refused to issue an injunction against eBay despite finding that eBay had wilfully infringed on MercExchange's patent. The District Court ultimately decided, after a Supreme Court appeal, that monetary damages were a sufficient remedy.

Others have explained why you cannot use the patent system to prevent the Government using your invention. However "patents" aren't the only way to protect Intellectual Property. The other option is to keep it a trade secret, which you only reveal to people you trust, and under non-disclosure agreements.

If it leaks to the government, you can sue the leakers - but not the government.

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    Why would you expect trade secrets to be unaffected by the doctrine of eminent domain? – Sneftel Aug 16 at 7:57
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    @Sneftel: Eminent domain affects property. Trade Secrets are not property. – MSalters Aug 16 at 8:18
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    @MSalters Well, the takings clause of the Constitution is the only thing stopping them from seizing your invention and not paying you, and it applies specifically to property, so your lawyer had better not argue that trade secrets aren't property. – Sneftel Aug 16 at 9:14
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    @Sneftel How could the government sieze the secret recipe for Coke? If it's only kept in the heads of individuals, it is immune from seizure. (If it's written down, they can seize the bits of paper of course. I don't know how that would interact with eminent domain.) – Martin Bonner Aug 16 at 9:56
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    Assuming the secret recipe of Coke is in your head alone and it is of "national importance" and you refuse to tell, you lose your inalienable civil rights and are held on a former oil platform in the southern hemisphere until you do. Just saying. Nobody is interested in your petty arguments, governments and their agencies simply take what they want. Your rights are worth exactly zero. – Damon Aug 16 at 10:05

if not, are there any ways in which I can sabotage or otherwise render it difficult for them

There may be a parallel in this news topic -- https://www.google.fr/search?q=pharmaceutical+execution -- i.e. pharmaceutical manufacturers trying to prevent State governments from buying their product to use for executing convicts.

This has been happening for a long time, with mixed or partial success.

I suppose the companies license/sell their product for a limited purpose; and I guess (for what my guess is worth) that the government could but doesn't manufacture the product themselves.

The latest news (which may not be successful) is of companies suing for damage to their reputation.

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    Pharmaceutical companies can do this because they have money and law forces them to approve pharmaceuticals to be sellable at all for a list of approved uses. Theoir protest about the licensed sales comes from this application process and them having to stand in for the quality: They deny any guarantee for non-licensed reseller's drug. Another issiue they often tackle: manny of the drugs in lethal injections are not cleared for this use. – Trish Aug 17 at 14:33

Speaking as a lay person, and having had some experience in dealing with the government as an inventor, I felt compelled to add this:

As a "practical matter" you may find it difficult to gain any remedy, or any compensation from the government, regardless of the applicable law. Why? It's a matter of simple economics.

In the courts, you get all the justice you can afford. In practice that works out as follows: Unless your pockets are very deep, you are "out-gunned" by many orders of magnitude. The government has armies of legal staff and bureaucrats working on their side, while you do not. And the government does not actually bear the cost of pressing their view in the courts; they're spending OPM (other people's money), so the costs are irrelevant.

  • This reads as more of an opinion than a relaying of fact. Some citations or examples would go a long way to improve the quality of this answer. – GOATNine Aug 16 at 13:27
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    Good point, but: It is an opinion... my "answer" is an opinion... legal decisions are "opinions". And as a lay person, my only citation is personal experience. I suppose I see the law more as the means to an end in this case, rather than an end in itself. If this doesn't pass muster as a proper answer in this forum, I'll gladly delete it. – Seamus Aug 16 at 13:40
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    I'm not sure common knowledge needs any kind of a cite, and if this answer isn't considered common knowledge on law.se, I'm unsure what could be. Of course, people DO regularly win against the government, but they also regularly win the lottery. Research on success rates of cases would be a valuable addition to this answer, though (eg usual federal case success rate is 51%; in employment discrimination cases it's 1%; but what's the success rate for non-class-action cases against the government?). – Dewi Morgan Aug 16 at 19:05
  • Here is an example of what Seamus is talking about: The Hughes Aircraft Company had a patent dispute with the U.S. federal government that lasted over 35 years. The patent was for spin-stabilization of satellites. A petitioner who was not as rich as Howard Hughes, and not as persistent as Howard Hughes, would probably have given up. As it was, Howard Hughes died long before the federal government agreed to abide by his company's trial victories. – Jasper Aug 20 at 1:07

protected by feetwet Aug 19 at 2:32

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