Unlike many governments, the U.S. has NOT expressly provided in its patent laws for a method of side-stepping the patent exclusivity in times of a national health crisis. Thus, when in 2001 Bayer indicated that it likely could not timely produce sufficient amounts of Cipro, Congress was faced with having to consider special legislation to break the patent exclusivity. Many scholars in the field questioned whether such government invalidation of the patent exclusivity would constitute a violation of the Constitution’s Takings Clause. 28 U.S.C. section 1498 provides for compensation for government use of patented inventions, and might have addressed the constitutionality concern, but that provision does not apply under all circumstances.

I addressed this issue in my article, “Not All Property is Created Equal: Why Modern Court Resist Applying the Takings Clause to Patents, and Why They are Right to Do So’, 15 Geo. Mason L. Rev. 1 (2007) (available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=968417 as well as at http://www.law.gmu.edu/gmulawreview/issues/15-1).

Davida Isaacs
Associate Professor of Law