By: Hunter Schmittou
From Volume 14 (2024-2025)
Download this article in PDF format from the Jerome Hall Law Library’s Digital Repository.
Abstract:
28 U.S.C. § 1498 allows the federal government and its contractors to use patented technologies without prior authorization, with the government assuming liability for infringement. While originally intended to facilitate procurement, its modern application has weakened patent protections, allowing contractors to incorporate patented innovations with minimal legal or financial consequences. This system disincentivizes private-sector investment in military technology, distorts competition, and increases procurement inefficiencies, ultimately placing the burden of infringement on taxpayers. The resulting imbalance not only stifles innovation but also entrenches reliance on a small group of dominant defense contractors, reducing technological diversity and slowing progress. Addressing these shortcomings requires structural reforms, including stronger licensing requirements, reallocation of infringement liability, and mechanisms to ensure good-faith licensing negotiations. Without intervention, Section 1498 will continue to undermine both technological advancement and the long-term efficiency of U.S. defense procurement.
