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13 Yale J.L. & Tech. 1 (2010-2011)

handle is hein.journals/yjolt13 and id is 1 raw text is: 28 U.S.C. § 1498(A) AND THE UNCONSTITUTIONAL TAKING OF PATENTS Joshua I. Miller* 13 YALE J.L. & TECH. 1 ABSTRACT 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. United States, 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 Zoltek, Section 1498(a) is an eminent domain statute, its grant of litigation costs to only some entities is unconstitutional under the Fifth Amendment's just compensation requirement. This Article presents the argument that Section 1498(a) is unconstitutional. It argues that patents are a species of property and that § 1498(a) was intended to provide the proper venue for a patent owner to bring suit against the government for its exercise of eminent domain in using a patent without authorization. It then discusses the just compensation requirement and the constitutional infirmity within Section 1498(a) and presents an amendment to cure that infirmity. * Candidate for LL.M., George Washington University Law School; 2009-20 10 University of Pittsburgh School of Law Samuelson/Glushko Fellow; Lead Notes & Comments Editor, JOURNAL OF LAW & COMMERCE; J.D., University of Pittsburgh School of Law, May 2010. I am extremely grateful to Professor Janice Mueller for her input and encouragement in writing this paper. I would also like to thank the Honorable Gerald J. Mossinghoff for sharing his recommendations and his experiences with the statute at issue. I would also like to express my gratitude to Xiyin Tang, Executive Editor of the Yale Journal of Law & Technology, for her insights and assistance during the editorial process.

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