Taking, Tort, or Crown Right? The Confused Early History of Government Patent Policy

62 Pages Posted: 26 Jun 2013

See all articles by Sean M. O'Connor

Sean M. O'Connor

George Mason University - Antonin Scalia Law School, Faculty


From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British "Crown Rights" rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens. And the third involved inventions by federal contractors and their employees arising under federal funding. While these three scenarios seem quite distinct today, nineteenth and early twentieth century courts often treated them as overlapping. The confusion was not resolved until the mid-twentieth century when a combination of executive branch and Congressional legislation set the roots of current government patent policy. This Article reviews the history in detail and illuminates current government patent policy debate occurring through such seemingly diverse cases as Stanford v. Roche and Zoltek Corp. v. United States.

Keywords: patents, inventions, intellectual property, shop rights, hired-to-invent, legal persons, eminent domain, Government Use Statute, Bayh-Dole Act, infringement

Suggested Citation

O'Connor, Sean M., Taking, Tort, or Crown Right? The Confused Early History of Government Patent Policy. John Marshall Review of Intellectual Property Law, Vol. 12, No. 1, pp. 145-204, 2012, University of Washington School of Law Research Paper No. 2013-24, Available at SSRN: https://ssrn.com/abstract=2285072

Sean M. O'Connor (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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