The Commercial Litigation Branch, Intellectual Property (IP) Section represents the United States in matters where a patent, copyright, trademark, or trade secret is at issue. Many of the cases the Section handles involve complex technologies, such as pharmaceutical compositions and highly sophisticated electronic devices. In order to meet the challenges presented by these cases, all attorneys assigned to the section have a degree in one of the physical sciences or in an engineering field and are eligible for admission to practice before the United States Patent and Trademark Office in patent matters. Approximately half of the IP Section attorneys are U.S. Patent and Trademark bar members.
Litigation forms the majority of the Intellectual Property Section’s workload. Section attorneys represent the United States in suits in the Court of Federal Claims under Title 28, section 1498 of the United States Code (28 U.S.C. § 1498). That statute provides patent and copyright owners a means of resolving claims of manufacture or use of patented inventions or the infringement of copyrights by government agencies and, under some circumstances, government contractors. These cases proceed in substantially the same manner as infringement suits between private parties under Title 35, section 271(a) of the United States Code (35 U.S.C. § 271(a)). However, under 28 U.S.C § 1498 the available remedies are limited to an award of monetary damages.
The IP Section is also responsible for defending similar suits under the Foreign Assistance Act, 22 U.S.C. § 2356 (relating to infringement by materiel provided to foreign governments), the Tariff Act, 19 U.S.C. § 1337 (for products imported by or for the United States) and the Atomic Energy Act, 42 U.S.C. § 2223 (relating to disclosures of “restricted” information contained in patent applications). The section defends suits for compensation under the Patent Secrecy Act, 35 U.S.C. § 183, which provides remedies for the use of an invention by the government while a pending patent application is subject to a secrecy order, and for damages resulting from the imposition of the secrecy order. The IP Section also prepares and prosecutes patent applications for government inventors, and represents the United States in patent interference proceedings. The section defends the Register of Copyrights in disputes relating to the registration of works, particularly from the refusal to register a work.
Intellectual Property Section attorneys advise and assist government agencies with many intellectual property issues arising from the Federal Government’s diverse operations. These issues can involve any aspect of intellectual property law. Frequent issues include the use of copyrighted works and trademarks, administrative claims for patent and copyright infringement, and contractual issues relating to trade secrets and data. The IP Section also advises and assists agencies in a broad range of issues related to the Internet, including Uniform Domain-Name Dispute-Resolution Policy proceedings, and copyright issues relating to posted materials.
The Trademark Amendments Act of 1999 abrogated the sovereign immunity of the United States for trademark infringement and created significantly greater government agency interest in trademarks. The IP Section now represents government agencies accused of infringing marks and actively enforces marks owned by government agencies. It also advises and assists agencies desiring to register marks.
In recent years, the Intellectual Property Section has become increasingly involved in providing assistance and representation to government agencies in disputes relating to the ownership and licensing of technology developed with a contribution by government employees or with government funding. These issues are generally governed by the Federal Technology Transfer Act (15 U.S.C. §§ 3710-3710d) and the Bayh-Dole Act (35 U.S.C. §§ 200-212).