A Jacksonian Theory of Estoppel in IP Litigation Against the United States

As an intellectual property infringer, the federal government occupies a unique position as both the entity that approved the infringed patent or trademark and an entity capable of arguing for its invalidity. By arguing for invalidity, the federal government assumes that it should be exempt from the traditional rules of procedural estoppel. Indeed, the government believes that even though it granted intellectual property rights (after careful research and deliberation and following the express review of an officer appointed with the advice and consent of the Senate), it should have a second bite at the apple to invalidate a patent or trademark when it risks liability. Ultimately, permitting the government to argue for inconsistent positions risks making intellectual property litigation—and the government itself—unpredictable and untrustworthy.

To remedy this imbalance, this Article advocates for a rethinking of estoppel through Justice Jackson’s Youngstown Sheet concurrence when an examining attorney acts pursuant to unambiguous authority granted by Congress. In doing so, this position equalizes the playing field during litigation that heavily favors the federal government.