Key Takeaways

  • The United States Patent and Trademark Office (USPTO) is the primary government agency that works with inventors to file patent applications.
  • Government patents can involve inventions made by federal employees, state employees, or government contractors, with ownership often depending on whether government resources or time were used.
  • Federal employees may need to assign invention rights to the government under specific conditions, though they can still receive compensation.
  • Contractors working with the federal government are subject to patent clauses in their agreements that determine ownership and licensing rights.
  • If the U.S. government uses a patented invention without permission, the patent holder can sue for reasonable compensation under 28 U.S.C. § 1498 in the Court of Federal Claims.
  • The USPTO provides multiple programs and initiatives that assist inventors, including small entity discounts, the Patent Pro Bono Program, and resources for independent inventors.

Government Patents

Countless government patents are submitted annually; such patent applications are examined not only by the United States Patent and Trademark Office (USPTO) but also by such government departments as the Pentagon, National Security Agency, Department of Justice, and the Department of Homeland Security. If a government body chooses to use the invention or idea, without prior approval from the patent holder, then that holder can in fact sue for compensation. But there are other statutory requirements when a government employee is seeking patent protection, particularly for federal, state, and even government contractors. Therefore, if the government employee has a new product or invention, he or she may be required to give over the rights to the government if certain criteria are met. The criteria is similar between federal and state employees, but it is reviewed on a case-by-case basis, as the totality of the circumstances are taken into account when determining whether or not the U.S. government has engaged in patent infringement against the patent holder. 

Role of the USPTO in Working With Inventors

The United States Patent and Trademark Office (USPTO) is the federal agency responsible for assisting inventors in filing and protecting their patent applications. For anyone wondering what is the government agency that works with inventors to file their applications, the USPTO is the primary point of contact. This agency examines patent applications to ensure that inventions meet the criteria of novelty, non-obviousness, and usefulness before granting patent rights.

The USPTO offers several resources to help both independent inventors and small businesses, including:

  • Patent Pro Bono Program – connects low-income inventors with volunteer patent attorneys.
  • Pro Se Assistance Program – provides guidance for inventors filing without an attorney.
  • Small Entity and Micro-Entity Fee Reductions – helps reduce filing costs for qualifying applicants.
  • Patent Public Search Tool – allows users to explore existing patents to avoid conflicts with prior art.

The USPTO also partners with other federal entities, such as the Small Business Administration (SBA) and National Institute of Standards and Technology (NIST), to educate inventors on intellectual property protection and commercialization strategies.

Inventions of Federal Employees

Under federal law, protection rights of an invention created by federal employees will be in government hands if the invention was:

  • Created during work hours when the employee was in fact working;
  • Made using government resources, which can include funding, equipment, documentation, information, etc.; or
  • Connected to the inventor’s (employee’s) official duties.

If the government doesn’t want to step in to file the patent application, then the appropriate department officials will need to permit the employee to do so. Even if the above criteria aren’t met, as a federal employee and inventor, you may still owe the government other rights, including royalty fees, non-exclusivity, etc. If, however, the government does in fact step in and take over the patent application for your invention, you will still earn roughly 15% of the profit from that invention.

Federal Patent Ownership and Employee Rights

When federal employees create an invention during the course of their employment, ownership often depends on the connection between the invention and their official duties. The federal agency employing the inventor—such as the Department of Defense, NASA, or the Department of Energy—may claim ownership if the invention was developed using government time, funding, or resources.

However, employees may still retain certain rights if their invention was created outside of work duties or without government resources. In these cases, agencies can issue waivers allowing the employee to file a patent personally through the USPTO. If the agency retains ownership, inventors can still earn royalties or profit-sharing, often up to 15% of the government’s licensing revenue from the invention.

Federal agencies must report inventions under the Bayh–Dole Act, ensuring that intellectual property created with federal support is managed efficiently and made available for commercial use.

Inventions of State Employees

Laws regarding state employee inventions are similar to that of the federal government. If you are a state employee, you’ll want to ensure that you are fully aware and knowledgeable regarding the specific state laws for the state you work in. Specifically, the state of Connecticut has ownership over state employee inventions if:

  • The invention is made during the employee’s work hours;
  • If the invention emerges from the examination and inquiry done while working for the state; or
  • If the invention was developed with the help of state funding or having used the state’s materials, equipment, other state employees, etc.

Inventions of Government Contractors

Independent contractors fare better. Federal agencies might waive patent rights when entering into government contracts. If, however, you are a direct contractor with the federal government (and not working through a company that was awarded a government contract), then you’ll want to bring this up during the onboarding process so that you are aware of any hurdles you’ll have to go through.

Patent Rights Under Government Contracts

Contractors engaged in federally funded research and development are subject to specific patent clauses under the Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS). These clauses define how ownership and licensing rights are allocated between the contractor and the government.

Typically, the contractor retains title to the invention, but the government receives a non-exclusive, irrevocable license to use the invention for government purposes. Contractors must:

  1. Disclose inventions developed under the contract within a specified timeframe.
  2. File patent applications promptly to protect intellectual property rights.
  3. Acknowledge government funding in patent filings.

Failure to comply with these obligations may result in the government claiming ownership of the patent. The USPTO works closely with contractors and their counsel to ensure compliance with federal patent rules, maintaining a balance between private innovation and public benefit.

Government Infringement

While you, as a patent holder, can sue the U.S. government for patent infringement, the case itself must be filed in the Court of Federal Claims (CFC) and not the federal district court.

Jury trials are not provided.

The only remedies you can get are royalty fees for the government’s use of your invention.

28 U.S.C. § 1498 protects businesses that are contracted to do work for the U.S. Therefore, if the business itself has patent protection over an invention, the business can bring suit against the U.S. in the United States Court of Federal Claims for reasonable compensation.

The government argues that it should never be viewed as an infringer but rather a “sovereign” who will agree to offer monetary relief for the use of someone else’s patents. Therefore, the government cannot be held liable for infringing because no infringement occurred if the U.S. agrees to provide a royalty fee or additional monetary relief for the use of a patented product or idea.

Filing a Claim Against the Government for Patent Use

If a patented invention is used or manufactured by or for the U.S. government without authorization, the patent owner can seek compensation under 28 U.S.C. § 1498(a). This statute provides that the government cannot be enjoined from using the patent but must provide reasonable compensation—typically in the form of royalty payments.

The claim must be filed in the U.S. Court of Federal Claims, which has exclusive jurisdiction over such cases. While jury trials are not available, patent holders can recover damages reflecting the fair market value of the use. Importantly, contractors performing work for the government are also shielded from infringement liability when acting under a government contract. This ensures continuity in federal operations while preserving inventors’ rights to compensation.

Frequently Asked Questions

1. What is the government agency that works with inventors to file their applications? The U.S. Patent and Trademark Office (USPTO) is the federal agency that works with inventors to file and review patent applications. It oversees the examination, approval, and issuance of patents in the United States.

2. Can government employees apply for patents on their inventions? Yes, but ownership often depends on when and how the invention was created. If developed during work hours, with government resources, or related to official duties, the government typically owns the rights.

3. What happens if the government uses a patented invention without permission? When the U.S. government uses a patented invention without prior approval, the patent holder can file a compensation claim with the U.S. Court of Federal Claims under 28 U.S.C. § 1498.

4. Do contractors retain patent rights for government-funded inventions? Government contractors may retain rights if their contract allows it. Some contracts require sharing ownership or granting the government a nonexclusive license to use the invention.

5. How can inventors protect their ideas when working with the government? Inventors should clearly define ownership rights in employment or contract agreements, keep thorough documentation of their invention process, and consult a patent attorney before filing.

If you need help with learning more about government patents or if you need assistance in applying for patent protection as a government employee, you can post your legal need (or post your job) on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.