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.
The court shall not award compensation under this section if the claim is based on the use or manufacture by or for the United States of any article owned, leased, used by, or in the possession of the United States prior to July 1, 1918.
A Government employee shall have the right to bring suit against the Government under this section except where he was in a position to order, influence, or induce use of the invention by the Government. This section shall not confer a right of action on any patentee or any assignee of such patentee with respect to any invention discovered or invented by a person while in the employment or service of the United States, where the invention was related to the official functions of the employee, in cases in which such functions included research and development, or in the making of which Government time, materials or facilities were used.
Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date.
1 So in original. Probably should be "Notwithstanding".
28 U.S.C. § 1498
HISTORICAL AND REVISION NOTES
1948 ACTBased on section 68 of title 35, U.S.C., 1940 ed., Patents (June 25, 1910, ch. 423, 36 Stat. 851; July 1, 1918, ch. 114, 40 Stat. 705).Provisions contained in the second proviso of section 68 of title 35, U.S.C., 1940 ed., relating to right of the United States to any general or special defense available to defendants in patent infringement suits were omitted as unnecessary. In the absence of statutory restriction, any defense available to a private party is equally available to the United States.Changes in phraseology were made.
1949 ACTThis amendment clarifies section 1498 of title 28, U.S.C., by restating its first paragraph to conform more closely with the original law.
REFERENCES IN TEXTHereafter, referred to in subsec. (b), probably means the date of enactment of Pub. L. 86-726 which was approved on Sept. 8, 1960.The copyright laws of the United States, referred to in subsec. (b), are classified generally to Title 17, Copyrights.Hereafter, referred to in subsec. (d), probably means after the date of enactment of Pub. L. 91-577 which was approved on Dec. 24, 1970.
AMENDMENTS1998-Subsec. (e). Pub. L. 105-304 inserted ", and to exclusive rights in designs under chapter 13 of title 17," after "title 17". 1997-Subsec. (b). Pub. L. 105-147, §3, substituted "action which may be brought for such infringement shall be an action by the copyright owner" for "remedy of the owner of such copyright shall be by action".1996-Subsec. (a). Pub. L. 104-308 inserted at end of first par. "Reasonable and entire compensation shall include the owner's reasonable costs, including reasonable fees for expert witnesses and attorneys, in pursuing the action if the owner is an independent inventor, a nonprofit organization, or an entity that had no more than 500 employees at any time during the 5-year period preceding the use or manufacture of the patented invention by or for the United States. Nothwithstanding the preceding sentences, unless the action has been pending for more than 10 years from the time of filing to the time that the owner applies for such costs and fees, reasonable and entire compensation shall not include such costs and fees if the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 1992-Subsec. (a). Pub. L. 102-572, §902(a)(1), substituted "United States Court of Federal Claims" for "United States Claims Court".Subsecs. (b), (d). Pub. L. 102-572, §902(a)(2), substituted "Court of Federal Claims" for "Claims Court". 1988-Subsec. (e). Pub. L. 100-702 added subsec. (e).1982-Subsec. (a). Pub. L. 97-168, §133(d)(1), substituted "United States Claims Court" for "Court of Claims". Subsecs. (b), (d). Pub. L. 97-164, §133(d)(2), substituted "Claims Court" for "Court of Claims". 1976-Subsec. (b). Pub. L. 94-553 substituted "sectionof title 17" for "section of title 17". 1970-Subsec. (d). Pub. L. 91-577 added subsec. (d).1960- Pub. L. 86-726, §4, substituted "Patent and copyright cases" for "Patent cases" in section catchline. Pub. L. 86-726, §1, designated existing provisions as subsec. (a) and added subsecs. (b) and (c). 1952-Act July 17, 1952, allowed Government employees to maintain patent suits against the United States in certain instances. 1951-Act Oct. 31, 1951, inserted second par. 1949-Act May 29, 1949, conformed first par. of section to original law.
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104-308, §1(b), Oct. 19, 1996, 110 Stat. 3814, provided that: "The amendment made by subsection (a) [amending this section] shall apply to actions under section 1498(a) of title 28, United States Code, that are pending on, or brought on or after, the date of the enactment of this Act [Oct. 19, 1996]."
EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section 911 of Pub. L. 102-572 set out as a note under section 171 of this title.
EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164 set out as a note under section 171 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94-553 effective Jan. 1, 1978, see section 102 of Pub. L. 94-553 set out as an Effective Date note preceding sectionof Title 17, Copyrights.
EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91-577 effective Dec. 24, 1970, see section 141 of Pub. L. 91-577 set out as an Effective Date note under sectionof Title 7, Agriculture.
WAIVER OF IMMUNITY FOR MEMBERS OF CONGRESS Pub. L. 86-726, §2, Sept. 8, 1960, 74 Stat. 855, provided that: "Nothing in this Act [amending this section and sectionof Title 10, Armed Forces] shall be construed to in any way waive any immunity provided for Members of Congress under article I of section 6 of the Constitution of the United States."