Government taking of inventions under 28 USC 1498
by nagle, Performer
- Created: February 6, 2010, 4:34 pm
We're having problems with Government use of a patented invention. This comes under 28 USC 1498. I hired an attorney in Washington familiar with such matters, filed an administrative claim for patent infringement against the agency, and waited. That was 22 months ago.
Since then, there's been one very brief reply from the agency, denying the claim and offering the opportunity to submit additional evidence. That was in July 2009. My attorney answered that within 30 days, providing substantial additional evidence and pointing out that the reply was legally insufficient. There's been no substantive reply to that yet, although my attorney has informally been promised a reply by the end of Q1 2010. (That deadline has low credibility. Back in 2008, we were promised, in writing, by the same attorney, a decision by the end of 2008. That decision didn't arrive until July 2009.)
We have requested mediation with a DoD mediator. The attorney for the agency has refused, claiming mediation would be 'premature'.
We've had help from a Congressional office. Even they get a runaround. The Congressional staffer I'm dealing with is very helpful, and has made several requests on our behalf. DoD 'lost' one for months (there was a written apology for that), and took weeks to reply to another, and then only with an acknowledgement.The congressional staffer tells me I may need a Senator on the Armed Services Commitee to get enough clout to make anything happen.
So far, I've spent about $15,000 in legal fees on this. We have solid evidence of infringement, from multiple published sources. The agency appears to be stalling because they don't have a good defense.
The next step is litigation in the Court of Federal Claims, but that would cost $1 million to $2 million. This claim isn't big enough for legal costs like that.
Administrative claims of patent infringement by the Government are handled entirely by the infringing agency. There's no hearing, no discovery, no neutral party, no time limits on the Government, and no administrative appeal. The process is very one-sided. Which is why this is so difficult.
We've done everything I and my attorneys can think of. I have very good legal representation, but the process is so one-sided that it doesn't help. There's no way to push this forward from the claimant side. Any ideas?
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