In 2006 the Federal Circuit in Zoltek Corp. v. United States denied a patent owner the basic protections of the Constitution. In 2005 the United States Supreme Court in Kelo v. City of New London effectively wrote the Public Use Clause out of the Fifth Amendment. This comment focuses on the constitutional and statutory rights of patent owners in light of Zoltek, Kelo, and 28 U.S.C. § 1498. After Zoltek and Kelo several questions remain, which this comment asks and analyzes. First, can the Federal Government unilaterally take a patent owner’s patent reasoning the taking benefits the economy, public safety, orpublic health? Second, can a government contractor intentionally use a patented process out of the country to evade all liability for the government to pay just compensation? Third, can Congress strip patent owners of their constitutional rights granted to the citizenry in the Fifth Amendment? This comment answers all three questions in theaffirmative and concludes patent owners require an amendment of 28 U.S.C. § 1498 to curb the Government’s ability to take any patent for any reason without paying for it.
Bradley M. Taub, Why Bother Calling Patents Property? The Government's Path to License Any Patent and Maybe Pay for it, 6 J. Marshall Rev. Intell. Prop. L. 151 (2006)