# Eminent domain and patents **URL:** \ **Category:** Great Debates\ **Created:** [February 20, 2013, 9:32pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907 "2013-02-20T21:32:43Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [February 20, 2013, 9:32pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/1 "2013-02-20T21:32:43Z")
I was reading an article that was highlighted on /. about how certain patents were a threat to the nascent 3D-printing industry. The exact patents are merely a jumping-off point for this thread, as is 3D printing itself. The thing is, as I understand it America has the concept of eminent domain, which is usually applied to land. But could it be applied to patents? Could the US Government use eminent domain to buy a patent, then licence it FOC to American companies to help kick-start an industry? Should they? ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 21, 2013, 3:15am UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/2 "2013-02-21T03:15:05Z")
I wonder if this would apply to copyrights as well? Can the government use eminent domain to take my manifesto and incorporate it into the law? Can they take my cool drawing and make it the new US flag? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [February 21, 2013, 4:11am UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/3 "2013-02-21T04:11:19Z")
Interesting question. A better scenario might be time of war, when some company with a patent needed for urgent war work refuses to license it, or refuses to do except with giant payments. Or, how about a company in the enemy nation with US patents? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 21, 2013, 1:27pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/4 "2013-02-21T13:27:55Z")
That \*did \*happen in WW1, with the [Wright Brothers](http://en.wikipedia.org/wiki/Wright_brothers_patent_war#The_patent_pool_solution)patents on aircraft. The government used moral and financial, not legal, pressure to achieve it, though. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [February 21, 2013, 5:18pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/5 "2013-02-21T17:18:36Z")
Hmm… patent pools seem to be an interesting alternative solution. ---
**Author:** ![Debaser](https://avatars.discourse-cdn.com/v4/letter/d/3da27b/32.png) [@Debaser](https://boards.straightdope.com/u/Debaser)\ **Post date:** [February 21, 2013, 5:39pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/6 "2013-02-21T17:39:54Z")
The problem with patents is that they were designed to encourage innovation. Some guy invents a better light bulb in his garage and he patents it so he can benefit from it. But currently they are being used to stifle innovation. Every large company spends lots of money on patent development and acquisition and protection. In some cases more than they do on research and development. The result is that they all have patents on everything. Amazon has a patent on ordering something with a click. Apple has a patent on having a screen with a button on it. The way all these absurd patents work is like Mutually Assured Destruction. If someone too badly infringes on someone else’s patent, they will get sued for all the patents they are infringing upon. This somewhat protects the large companies and keeps things stable. But it doesn’t leave any room for that guy who invented something in his garage. Some asshole out there actually has a patent on “buying something on the internet” and everyone has to pay him $25,000 tribute to have an eBusiness. I’ll try to search to get his name… ---
**Author:** ![Blaster\_Master](https://avatars.discourse-cdn.com/v4/letter/b/cab0a1/32.png) [@Blaster\_Master](https://boards.straightdope.com/u/Blaster_Master)\ **Post date:** [February 21, 2013, 5:43pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/7 "2013-02-21T17:43:45Z")
At first glance, it seems like a good idea, but on further thought, this is dangerous ground. How would it be applied? Only when it’s truly crucial, whenever it’s a general benefit, or could it be corrupted. I think most people understand that it makes sense when building vital infrastructure, but there’s a lot of issues with it being used to build strip malls or apartment complexes or whatever. We could see these same problems with intellectual property as well I think most people would get behind it if, say, someone invented a cure for cancer or nearly free energy. That would immediately change millions of lives, and it could very well be a benefit to society if it were made readily available right away. But what happens if someone develops a profitable but non-essential technology or some small company or individual comes up with a huge improvement that a large company just doesn’t want to have to pay for or they can’t convince that person or small company to sell, could they lobby the government to use eminent domain? How do we put reasonable limits on this? This is where, I think, intellectual property differs, because it’s supposed to have time limits on it, property could theoretically be owned indefinitely. So, short of a truly revolutionary breakthrough and some unusual circumstances, I think there’s going to be a lot less need for that concept of eminent domain in intellectual property. Further, land could very well be vital to necessary infrastructure, like a new road, you can’t always just find another way to build it, short of circumventing, which very well may defeat the purpose. With intellectual property, particularly today, there’s still likely going to be a way to get done what we need to get done, and even if it is truly necessary, it may make more sense to just force them to license for that particular purpose at a reasonable price. And, to some extent, that already happens with certain laws that put certain limits on prices the government can be charged. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 21, 2013, 5:47pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/8 "2013-02-21T17:47:35Z")
I’m not sure what the advantage would be over just invalidating the patent. ---
**Author:** ![Debaser](https://avatars.discourse-cdn.com/v4/letter/d/3da27b/32.png) [@Debaser](https://boards.straightdope.com/u/Debaser)\ **Post date:** [February 21, 2013, 6:32pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/9 "2013-02-21T18:32:44Z")
The guy I was thinking of is named Mitchell Medina, and his “company” is called Millennium. If the government wants to do something to improve the patent system, instead of confiscating them they should first clean up their own house so that terrible patents like this aren’t issued to be used for baseless lawsuits against hundreds of companies. > [@](#): > > In February 2005, Flagstar Bancorp received a summons stating that it was being sued by Eon-Net, a privately held company based in the British Virgin Islands. Eon-Net, like Millennium, was a company that Medina had set up to protect his intellectual property. Already, with the help of a tireless New Jersey attorney named Jean-Marc Zimmerman, Medina had successfully demanded licensing fees from dozens of other companies for infringing on his patented process of extracting data from scanned documents. But in 2004 Medina was granted another patent, one of several follow-ups to the original. This patent took an even more generous view of his initial idea, covering the extraction of not just scanned data but any information that had been entered using a “multimode information processing system,” a term that was not in the first patent. Medina later requested a further tweak, changing 30 phrases to the broadest possible description of his invention—”a method of processing information.” > > As Zimmerman interpreted it, this extended the domain of the patent to the realm of ecommerce. Under this theory, pretty much anybody who filled out an online form was supposedly infringing on Medina’s patents. > > It was a powerful claim. Medina and Zimmerman used it to sue more than 100 ecommerce companies. Some considered fighting the claims. A CEO of one ecommerce site was so outraged when he was first served by Eon-Net that he tried to mount his own homegrown defense. He didn’t have enough money to pay a legal team, so he drafted his own legal interrogatories. (One example: “Describe the method by which you sleep knowing that you are a scum-sucking pig.”) He also contacted the coinventor of several online markup languages to see how much it would cost to have him appear as an expert witness on his behalf. The answer: $25,000, exactly what Eon-Net was demanding in licensing fees, a price that made settling the only rational decision. Grudgingly, the CEO gave up. (He requested anonymity from Wired because he didn’t want to make himself a target for future lawsuits.) [Excellent Wired article](http://www.wired.com/opinion/2012/11/ff-steven-levy-the-patent-problem/) ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [February 21, 2013, 7:40pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/10 "2013-02-21T19:40:10Z")
> [@Debaser](#): > > The guy I was thinking of is named Mitchell Medina, and his “company” is called Millennium. > > If the government wants to do something to improve the patent system, instead of confiscating them they should first clean up their own house so that terrible patents like this aren’t issued to be used for baseless lawsuits against hundreds of companies. 20 years ago or so when I or anyone in my group applied for a patent, we always got turned down by the examiner due to prior art, and always had to explain why the invention was different. I don’t know about other people’s experience, but the last two I got just got issued with no arguments. (And they weren’t all that great.) The patent office is now self-funding, and thus examiners have quotas which they can’t meet if they actually examine everything. And software is even worse, since before they started granting software patents no one documented the way inventors of hardware stuff did. I certainly never got trained that way. We all had engineering notebooks, but software people almost never used theirs while hardware people used their all the time. My understanding is that the patent office philosophy these days is to grant and let the courts work it out. I suspect if anyone wanted to put the time, money, and people into it they could toss a good chunk of all the software patents that got issued in the past 20 years. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 21, 2013, 9:08pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/11 "2013-02-21T21:08:34Z")
> [@Quartz](#): > > I was reading an article that was highlighted on /. about how certain patents were a threat to the nascent 3D-printing industry. The exact patents are merely a jumping-off point for this thread, as is 3D printing itself. The thing is, as I understand it America has the concept of eminent domain, which is usually applied to land. But could it be applied to patents? Could the US Government use eminent domain to buy a patent, then licence it FOC to American companies to help kick-start an industry? Should they? I think the answer to “Can they?” is probably “yes.” Among many other cases, _Phillips v. Washington Legal Foundation_, 524 US 156 (1998), recognized that personal property (as opposed to real property) could be the subject of eminent domain. I don’t see any conceptual bar to including intellectual property. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 21, 2013, 9:17pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/12 "2013-02-21T21:17:58Z")
> [@Bricker](#): > > I think the answer to “Can they?” is probably “yes.” > > Among many other cases, _Phillips v. Washington Legal Foundation_, 524 US 156 (1998), recognized that personal property (as opposed to real property) could be the subject of eminent domain. I don’t see any conceptual bar to including intellectual property. How would just compensation for intellectual property be assessed, do you suppose? ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [February 21, 2013, 9:57pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/13 "2013-02-21T21:57:23Z")
Doesn’t the Constitution explicitly give Congress the power to issue patents? I would think that includes the power to revoke patents as well. So no need to use eminent domain, Congress can simply pass a law “Patent 12345 is hereby revoked”. I suppose there might be a Fourth Amendment or due process problem with doing that, but I’m not sure. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 22, 2013, 12:12am UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/14 "2013-02-22T00:12:13Z")
> [@Czarcasm](#): > > How would just compensation for intellectual property be assessed, do you suppose? Not sure – but here are some guideposts. The property owner must be compensated. That compensation must be the fair market value of what the property owner loses (as opposed to what the government gains). So for a patent owner, two things seem to be in play: he loses his right to obtain license fees for the life life of the patent, and his ability to sell the patent. The latter is a one-time transaction, and can probably be easily measured. But the former is a much tougher nut to crack. Consider the case alluded to above – the overly broad patent that was nonetheless generating license/settlement fees for its owner. Assuming for this discussion that the enforcement of those settlements is shady and that the government would not pursue them, measuring the loss to the holder would seem very difficult. ETA: this is not my area of law, so I’m winging it, here. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 22, 2013, 12:15am UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/15 "2013-02-22T00:15:53Z")
It’s still a pretty good insight into the situation, so thank you. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [February 22, 2013, 12:50am UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/16 "2013-02-22T00:50:12Z")
**Czarcasm** , valuing patents spawned its own industry in the last few years. The essence of the process is to identify markets that are likely to use the patent, then make educated guesses as to what those markets are willing to pay to license the patent. If you were spending your own money, you would also want an analysis as to whether the patent has validity problems and whether the target markets likely infringe the patent. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [February 22, 2013, 1:34am UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/17 "2013-02-22T01:34:18Z")
A patent is, basically, a monopoly right granted by the state. The state doesn’t need to appeal to “eminent domain”; it can just not grant the monopoly right in the first place, or grant for a shorter time, or on more limited terms, or subject to specific exclusions or qualifications, or whatever. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 22, 2013, 1:23pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/18 "2013-02-22T13:23:13Z")
> [@Pleonast](#): > > Doesn’t the Constitution explicitly give Congress the power to issue patents? I would think that includes the power to revoke patents as well. So no need to use eminent domain, Congress can simply pass a law “Patent 12345 is hereby revoked”. > > I suppose there might be a Fourth Amendment or due process problem with doing that, but I’m not sure. The problem is the Fifth Amendment’s Takings Clause: “…nor shall private property be taken for public use, without just compensation.” It’s true that the government issues patents, can can revoke them as well. But once issued, a person has a property interest in a patent, and the government can’t simply remove that interest without paying “just compensation.” > [@UDS](#): > > A patent is, basically, a monopoly right granted by the state. > > The state doesn’t need to appeal to “eminent domain”; it can just not grant the monopoly right in the first place, or grant for a shorter time, or on more limited terms, or subject to specific exclusions or qualifications, or whatever. Yes – but once granted, it cannot simply remove it, or shorten the period, without implicating the Takings Clause. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [February 22, 2013, 4:24pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/19 "2013-02-22T16:24:25Z")
> [@Bricker](#): > > Yes – but once granted, it cannot simply remove it, or shorten the period, without implicating the Takings Clause. I’m certain the patent’s owner would argue that, but would that argument hold up in court? To take a parallel example, Congress has the power to issue letters of marque. Such a letter would have some value. Can Congress revoke the letter before its expiration? I think it could be argued that a patent or letter of marque is not property in the sense of Fifth Amendment. Instead, they are granted rights. Is there any case law involving this? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 22, 2013, 4:30pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/20 "2013-02-22T16:30:06Z")
Wouldn’t any taking without just compensation almost _have_ to involve some sort of contractual impropriety or illegality on the part of the patent holder? [Next page](https://boards.straightdope.com/t/eminent-domain-and-patents/650907.md?page=2)