Historical and Revision Notes
Based 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.
This 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 Text
Hereafter, 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.
1998—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 “section 504(c) of title 17” for “section 101(b) 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.
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
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 section 2386 of 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.”