Patents as Property for the Takings

The Fifth Amendment’s Compensation Clause contains only a few simple words. Yet, the only consensus that academics and judges consistently reach on the clause is that there is no consensus. Caselaw and scholarship on the clause continue to develop with a remarkable lack of dialogue with property law. This article seeks to bridge the gap by addressing a question of increasing practical importance. Does the Compensation Clause apply to patents for inventions? This article offers the first comprehensive analysis of the question considering history, Constitutional textural and structural dissection, judicial interpretations, and patent theory, arguing that from all of these perspectives, patents do not fall within the Compensation Clause.Distinguishing between the “core” private rights of the Common Law and the “public rights” that historically originated in discretionary grants from policymakers, this article places private property squarely in the former and patents squarely in the latter. Reinforcing these findings, the article evaluates the objectives of patent law and takings law in light of constitutional and statutory text, history, and structure. Finally, the little interpretive precedent that exists has compelled contemporary courts to reject Compensation Clause claims for patent takings. Whether one observes from the historical and theoretical perspectives embedded in our Nation’s founding footsteps, from a textural and structural analysis of the Constitutional language, or from the logic of judicial analyses, the conclusion is the same. Patents do not constitute private property for the purposes of the 5th Amendment’s Compensation Clause