# 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:** 7\ **Page:** 2
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 22, 2013, 4:46pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/21 "2013-02-22T16:46:01Z")
> [@Pleonast](#): > > 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? Here’s a summary of a recent case that touched on the [issue](http://features.blogs.fortune.cnn.com/category/takings-clause/). It seemed to find that patents didn’t fall under the takings clause, and the SCOTUS refused to hear an appeal. The issue seems pretty confused though, and given the rate at which IP generates lawsuits and the increased demands for IP reform, I imagine the topic will end up infront of the SCOTUS at some point in the nearish future. ---
**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, 5:30pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/22 "2013-02-22T17:30:33Z")
> [@Simplicio](#): > > Here’s a summary of a recent case that touched on the [issue](http://features.blogs.fortune.cnn.com/category/takings-clause/). It seemed to find that patents didn’t fall under the takings clause, and the SCOTUS refused to hear an appeal. > > The issue seems pretty confused though, and given the rate at which IP generates lawsuits and the increased demands for IP reform, I imagine the topic will end up infront of the SCOTUS at some point in the nearish future. Nope. You link to an article about a 2007 decision. But that’s not the last word on the subject. Read _Zoltek Corp. v. United States_, 672 F.3d 1309 (Fed. Cir. 2012). You’ll see that the Federal Circuit revisited its holding and vacated the 2007 decision. So as the law stands right now in the Federal Circuit, patents are not fodder for takings without compensation by the government. The Zoltek decision addresses only a very narrow issue in any event. Briefly: the US Government is immune to being sued. The government is sovereign; it can only be sued if it consents to being sued. Congress did consent to being sued for patent infringement – when the United States infringes on a patent, Congress has created a cause of action that lets the patent holder recover. In Zoltek, the company held a patent that addressed rolling out carbon fiber sheets. Lockheed Martin used that patented process to make fighter jets for the government. Zoltek sued the government, which it had to because Lockheed, as a government contractor, was entitled to governmental immunity from suit. Zoltek lost because the sheets were actually being manufactured (at least partly) in Japan, and the court found that Congress only consented to being sued if all the steps constituting patent infringement occurred in the United States. So Zoltek was told, in effect, the Congress never agreed to be sued for this. Zoltek then switched tactics, reasoning that if Congress didn’t cover this, then Lockheed itself could be sued. They sued Lockheed. That action caused the court to send up a question to the court of appeals: does the “outside the country” business destroy contractor immunity? The Federal Circuit said, in effect, “OK, we see we created a bag of worms here. Forget what we said in 2006 – inside or outside, makes no difference, Zoltek can sue the federal government.” So basically the Federal Circuit overruled itself. Give me a nice, simple criminal case any day of the week. ---
**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, 5:42pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/23 "2013-02-22T17:42:40Z")
Interesting. Although those cases don’t really address what I’m wondering: if Congress passes a law that revokes a specific patent, does the patent’s owner have any recourse? ---
**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, 5:56pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/24 "2013-02-22T17:56:21Z")
> [@Pleonast](#): > > Interesting. Although those cases don’t really address what I’m wondering: if Congress passes a law that revokes a specific patent, does the patent’s owner have any recourse? A law aimed at a specific inividual to revoke a specific patent? ---
**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, 7:50pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/25 "2013-02-22T19:50:14Z")
Yes, aimed at a specific patent. It wouldn’t really matter who owned it. ---
**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, 7:58pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/26 "2013-02-22T19:58:21Z")
> [@Pleonast](#): > > Yes, aimed at a specific patent. It wouldn’t really matter who owned it. It would kind of hard to claim that a law is not aimed at an individual when said law would take property from that individual and that individual only. I’m pretty sure the courts would see through that in a millisecond, BIANAL. ---
**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, 8:30pm UTC](https://boards.straightdope.com/t/eminent-domain-and-patents/650907/27 "2013-02-22T20:30:42Z")
> [@Pleonast](#): > > Interesting. Although those cases don’t really address what I’m wondering: if Congress passes a law that revokes a specific patent, does the patent’s owner have any recourse? Based on the reasoning in Zoltek… yes. Even if Congress passed a law that simultaneously revoked a specific patent and also re-instated the United States’ sovereign immunity for patent infringement, the Takings Clause would (in my opinion) still apply, because Congress’ action deprived the owner of a property interest wholly apart from the United States’ infringement. Congress can choose to insulate the United States from claims of patent infringement but it can’t take property away from a person without just compensation. A patent’s property interests go well beyond the use the federal government may make of the patent. [Previous page](https://boards.straightdope.com/t/eminent-domain-and-patents/650907.md?page=1)