Not All Property is Created Equal: Why Modern Courts Resist Applying the Takings Clause to Patents, and Why They Are Right To Do So

After a century of disregard, the question of whether patents are entitled to protection under the Fifth Amendment\u27s Takings Clause has recently become a topic of scholarly and judicial debate. While one might have expected this issue to have been settled long before, it is only the recent burgeoning of patentholders\u27 regulatory takings claims that has made this question one of pressing interest. Thus far scholarship on the issue has focused on whether or not patents have historically been characterized as property. Meanwhile, last year\u27s rejection by the Federal Circuit of a patentholder\u27s right to assert a Takings Clause claim led to both external criticism as well as a vocal dissent by an esteemed member of that court. Considering the issue from a new angle, this article demonstrates that determination of patents\u27 status as property is a relevant but incomplete analysis of the constitutional question. That is because the Supreme Court has already concluded that some property interests, particularly federal benefits, are entitled to Due Process Clause protection but are not entitled to Takings Clause protection. Patents are similar federal entitlements, offered only because they serve society, and thus they are not entitled to the full panoply of constitutional protections. Moreover, if patentholders could assert regulatory takings claims, the fear of costly claims could very well deter the government from making worthwhile policy changes. For instance, there is currently significant public concern about the high prices of pharmaceuticals resulting from drug companies\u27 patent privileges. Refusing to grant patentholders the right to a Takings Clause remedy will prevent society from being stuck with earlier suboptimal patent policies. In sum, permitting patents to trigger takings claims is neither compelled by modern Supreme Court precedent nor wise as a policy matter