A Path Toward an Increased Role for the United States in Patent Infringement Litigation

A number of major statutory schemes implicate federal interests but do not provide for explicit authority for the United States to bring lawsuits for damages or to obtain injunctive relief. The patent statutes provide that the patentee may sue in the case of infringement, and court decisions have extended that right to certain licensees. Accordingly, the United States has participated in cases in which it is not a co-patentee or licensee only as an amicus. Yet the government arguably has an interest in intervening in or instituting, as a co-plaintiff, infringement cases involving certain patents. Recent scholarship has renewed attention on whether, and to what extent, the United States may broadly assert a cause of action that is implied from a statute or is based on an inherent, non-statutory authority. The Supreme Court’s current intolerance of rights implied from statutes in cases brought by private litigants means that the government must rely on a different theory in order to potentially succeed in asserting a cause of action. Because the United States has frequently argued that a unique standard for implying a right to sue from a statute should apply when the government is a plaintiff, this article focuses on the most-invoked decision, Wyandotte Transportation Company v. United States. It concludes that Wyandotte is a fragile cornerstone for actions beyond suits to recover pecuniary loss or remedy damage to government property. The article then turns to a little-understood but broad authority that is not dependent on implication from a statute but rather rests on sovereignty and the effectuation of important federal interests. It suggests that this power, which has been referenced in several Supreme Court decisions and argued in several contexts, should be examined anew as a basis for claims by the UnitedStates in cases involving patent infringement