GAO will not Consider Intellectual Property Infringement Disputes with the U.S. Government

Did you know that if you have a dispute with the U.S. Government over infringement of intellectual property rights in a federal procurement, the United States Government Accountability Office (“GAO”) has no jurisdiction to consider that dispute? In Controlled FORCE, Inc. B-408853 (September 18, 2013), GAO reminded a disappointed bidder of its lack of jurisdiction. In this protest, the disappointed bidder claimed that the Navy violated its intellectual property rights by incorporating Controlled FORCE’S proprietary “Mechanical Advantage Control Holds” program into the solicitation requirements and Navy guidance. GAO dismissed the protest for lack of jurisdiction, stating:

"We dismiss this protest because we do not consider questions of intellectual property infringement under our bid protest jurisdiction. A patent or copyright holder’s remedy for any alleged government violation of its intellectual property rights, resulting from a government procurement, is a suit for money damages against the government before the Court of Federal Claims. 28 U.S.C. § 1498. See Diversified Technologies; Almon A. Johnson, Inc., B-236035, Nov. 6, 1989, 89-2 CPD ¶ 427, See also Wynn Baxter/Educational Training Concepts, B-197713, May 20, 1980, 80-1 CPD ¶ 349. Additionally, original jurisdiction over trademark disputes lies in the “district and territorial courts of the United States,” not with our Office. 15 U.S.C. § 1121. Accordingly, our Office lacks jurisdiction to consider the issues raised in the protest."


Janine S. Benton is a partner with the law firm of Benton Potter & Murdock, P.C. Ms. Benton's practice focuses on all aspects of government contracts, including bid protests at the GAO and Court of Federal Claims. Ms. Benton is a frequent lecturer on issues related to procurement, corporate law, and other matters. Ms. Benton's email address is jb@bpmlawyers.com..