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23 Yale J.L. & Tech. 1 (2020-2021)

handle is hein.journals/yjolt23 and id is 1 raw text is: Yale Journal of Law & Technology Volume 23, Fall 2020 WHO'S AFRAID OF SECTION 1498? A CASE FOR GOVERNMENT PATENT USE IN PANDEMICS AND OTHER NATIONAL CRISES Christopher J. Morten & Charles Duan* COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict indeed, have already begun to conflict with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government- paid compensation under 28 U. S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point that it ought to be invoked sparingly or not at all, even in extraordinary circumstances such as a pandemic. Yet that conventional wisdom is a recent one, and it conflicts with both history and theory. This Article considers the role of § 1498 in the context of national crises and emergencies like * Copyright 2020 Christopher J. Morten and Charles Duan. Morten is the deputy director of the Technology Law and Policy Clinic and a Fellow at the Engelberg Center on Innovation Law & Policy at New York University School of Law. He is also a Visiting Fellow of the Yale Global Health Justice Partnership and an Affiliated Fellow of the Information Society Project at Yale Law School. Duan is a Senior Fellow at the R Street Institute, Washington, D.C. Order of authorship was determined by coin flip. Portions of this Article are based on Who 's Afraid of Section 1498? Government Patent Use as Versatile Policy Tool, WRITTEN DESCRIPTION (Apr. 24, 2020,), https://writtendescription.blogspot.com/2020/04/ whos-afraid-of-section-1498-government.html. The authors would like to thank Al Engelberg, Daniel Hemel, Amy Kapczynski, Priti Krishtel, Matthew Lane, Lisa Larrimore Ouellette, Zain Rizvi, Bhaven Sampat, Jason Schultz, Ken Shadlen, Kathy Strandburg, Jacob Victor, and the editors of the Yale Journal of Law and Technology for their valuable insights and assistance that contributed to this Article. C.J.M. gratefully acknowledges Kara Smith (NYU Law '22) for research support. All errors are the authors' own.

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