The AIA Is Not a Taking: A Response to Dolin & Manta

16 Pages Posted: 1 May 2016 Last revised: 21 Sep 2016

See all articles by Camilla Alexandra Hrdy

Camilla Alexandra Hrdy

University of Akron School of Law; Yale University - Information Society Project

Ben Picozzi


Date Written: April 26, 2016


Gregory Dolin and Irina Manta argue in a recent article that the Leahy-Smith America Invents Act (AIA) effectuates a “taking” within the meaning of the Fifth Amendment by depriving patent owners of the economic value of their patents without compensating them for these losses. Specifically, they contend that the AIA’s creation of enhanced inter partes review (IPR) and covered business method review (CBMR) proceedings significantly interfered with patentees’ “reasonable investment-backed expectations” by increasing the likelihood that their patents would be found invalid.

Dolin and Manta’s analysis offers an engaging and important discussion on the constitutional implications of patent reform. But this response refutes Dolin and Manta's argument that the AIA effectuated a compensable taking. First, the authors’ premise that patents are property rights protected by the Takings Clause is far less clear than they contend. The relevant precedents are hardly decisive. Second, courts are unlikely to view IPR and CBMR proceedings as the kinds of government actions governed by the Takings Clause. Courts assessing constitutional challenges under the Fifth or Fourteenth Amendment tend to distinguish actions intended to “cure” defects in government administrative systems from incursions on property rights. Indeed, the Federal Circuit rejected a challenge to IPR’s predecessor based partly on this distinction. We see little reason that a court would reach a different conclusion today. Third, even if it were possible to “take” patents by subjecting them to more stringent post-issuance review, Dolin and Manta overstate the extent to which the AIA affected patentees’ investment-backed expectations. The AIA was enacted against a background of federal statutes and regulations that authorize challenges to patent validity. Patentees could foresee that the government would continue to actively regulate patent rights without necessarily compensating patentees for their losses. Together, these arguments persuade us that the AIA is not a taking.

Suggested Citation

Hrdy, Camilla Alexandra and Picozzi, Ben, The AIA Is Not a Taking: A Response to Dolin & Manta (April 26, 2016). 72 Wash. & Lee L. Rev. Online 472 (2016), Available at SSRN:

Camilla Alexandra Hrdy (Contact Author)

University of Akron School of Law ( email )

259 S. Broadway
Akron, OH 44325
United States

Yale University - Information Society Project ( email )

New Haven, CT

Ben Picozzi

Independent ( email )

No Address Available
United States

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