eVideo Sues United States Over Patents Tossed Into 'SAWS' Program

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eVideo, Inc., its owner, Realvirt Limited Liability Corporation, and an inventor have filed a proposed class action lawsuit in the U.S. Court of Federal Claims alleging the United States violated the Tucker Act by designating proposed class members’ patent applications into the United States Patent and Trademark Office’s Sensitive Application Warning System (SAWS) without notice. The lawsuit alleges the Patent and Trademark Office’s SAWS program, while operational for several years, was internal and kept secret from the public and patent applicants with pending applications before the program’s termination in March 2015.

Enacted in 1887, the Tucker Act is a statute under which the United States waived its sovereign immunity to certain kinds of legal claims. Cornell Law School writes that while the U.S. government is immune to most types of lawsuits, the Tucker Act allows its exposure for claims stemming from contractual disputes, non-contractual claims for which the plaintiff seeks the return of money paid to the government, and claims where plaintiffs argue they are entitled to government payment. Lawsuits stemming from alleged Tucker Act violations are vested in the U.S. Court of Federal Claims.

The plaintiffs allege on good faith belief that their patent applications were designated into the SAWS program, causing them to be delayed and “possibly denied allowance” outright into the Patent and Trademark Office’s examination process solely due to their inclusion in the program. Arguing that an “in fact contract” exists between the Patent and Trademark Office and all proposed class members, the lawsuit alleges the United States violated this pact by failing to notify individuals of the SAWS designations imposed on their patent applications. More specifically, the plaintiffs claim a SAWS designation is, essentially, a rejection or objection of a patent application based on myriad reasons, “none of which were ever communicated or explained” to the SAWS applicants.

Ultimately, the plaintiffs argue they and proposed class members—i.e. inventors as patent applicants or their assigns and the owners of subject patent applications and/or issued patents—were harmed financially by “paying unwarranted fees and attorney fees” while their patent applications languished in the government’s SAWS program.

“Currently, the average period of time a U.S. patent application remains pending before the [Patent and Trademark Office] during the patent examination process before final disposition (i.e. either an allowance by the PTO toward issue as a patent, or abandonment of the application based on an applicant’s election that further prosecution is not advisable or desirable) is about three years,” the lawsuit reads. “Each of the SAWS applications owned by the plaintiff is associated with a prosecution period (i.e., the length of time it was pending before the PTO) that is far longer than average.”