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28 U.S.C. § 1498(A) And The Unconstitutional Taking Of Patents, Joshua I. Miller
28 U.S.C. § 1498(A) And The Unconstitutional Taking Of Patents, Joshua I. Miller
Joshua I. Miller
Eminent domain requires a showing of two elements: a property right; and a proper venue to bring suit against the government. 28 U.S.C. § 1498(a) grants patent owners the right to sue the United States for the unauthorized use of patents. This statute and its predecessors have long been viewed as an exercise of eminent domain over the patent property. The Federal Circuit ignored this view in Zoltek v. U.S., holding that patents are not subject to eminent domain. However, Congress has acknowledged that litigation costs are a necessary part of a patent taking. If, as precedent established long before …