Schillinger V. United States - Subsequent Developments

Subsequent Developments

Congress subsequently passed 28 U.S.C. § 1498, which permits owners of intellectual property rights such as patents, copyrights, and mask works to sue for "just and entire compensation" when the United States uses such intellectual property rights.

The United States Court of Appeals for the Federal Circuit recently held that no action against the United States lies for patent-related cases not fitting squarely within the language of § 1498, because sovereign immunity has not been waived for intentional torts and, consistent with Schillinger, patent infringement is not a taking of property under the Fifth Amendment. The Federal Circuit held that patent rights are not property interests under the Fifth Amendment, reasoning that § 1498's "new and limited waiver of sovereign immunity" would have been unnecessary if Congress intended for patents to be compensable rights under the Takings Clause. The Federal Circuit so ruled despite a number of obiter dicta in previous decisions that assumed that patent infringement was a taking of property. The Federal Circuit's ruling is consistent with current Supreme Court takings jurisprudence, however, because patent infringement does not usually deprive the patentee of substantially all of the value of the patent.