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A Protection, Not a Weapon

Sometimes it takes a crisis to show who believes in private property rights and who doesn’t. Even in America, there are those who demand that government take away inventors’ new discoveries and inventions — expropriation without just compensation.

Advocates of all stripes have come out of the woodwork in the COVID-19 pandemic. Special interest groups including Big Tech “efficient infringers” of patents, gadflies like Doctors Without Borders and Knowledge Ecology International, nations with socialized health systems like Canada, the U.K. and Germany, America-envying United Nations members, as well as lawmakers, a smattering of universities, and others have called for denying intellectual property rights in COVID-related inventions.

Among the antiproperty rights measures, one urges the government to invoke 28 U.S. Code section 1498. This law provides the owner of a patent or copyright that the government uses without permission a way to recoup damages.

Title 28 of the U.S. Code governs the judiciary and judicial procedure. Under the Constitution, the federal government and each state government are sovereigns. Each holds sovereignty over certain territory and possesses certain plenary powers.

The U.S. Constitution enumerates the specific authorities of the federal government, which are given to it by its constituent members, the states. The states ceded those enumerated powers to the federal government and retained for themselves all other powers. Respective state or federal sovereign immunity otherwise guards these governments against tort lawsuits.

Note that the existence of section 1498 effectively acknowledges that the patent and the invention are private property. Further, this measure waives the U.S. government’s sovereign immunity in order to secure private IP rights.

While the Constitution permits the federal government the power to take private property for a public use, that authority is limited in part by the Fifth Amendment’s requirement that the government pay the property owner “just compensation” — that is, pay the owner what the property’s worth.

Section 1498(a) specifies that “the owner’s remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture” (emphasis added). A patent owner that’s an independent inventor, nonprofit or small business may also recoup litigation costs. The court determines damages in these patent infringement cases, generally applying factors set out in Georgia-Pacific and contemplating a hypothetical negotiation.

Rather than a tool for expropriation of IP, section 1498 protects IP owners against patent infringement by the government. It provides a means for rectifying takings of private property, at the cost of paying “reasonable and entire compensation” to the private property owner.

The ones claiming that section 1498 should double as authority to expropriate IP are also demanding anti-IP pledges, royalty-free licenses, patent pools, compulsory licenses, the IP equivalent of eminent domain and other methods of expropriating private property. These kinds of policies and practices typify socialistic and other nations lacking a commitment to private property rights. Just sayin’.

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