[Ip-health] History of 28 USC 1498, as reported in Zoltek Corp v US (2009-5135)

Kapczynski, Amy amy.kapczynski at yale.edu
Fri Oct 28 05:21:26 PDT 2016

We also discuss some of the history of the act in this piece:

Part of what we recount is evidence from the legislative record reflecting that Congress intended the statute to protect the government against price gouging.  During hearings regarding the 1942 amendments, e.g. there was explicit discussion of price gouging, and affirmations that the government could “use unhesitatingly” any patent for which no license agreement existed “by the simple expedient of expropriation and infringement.”

Still more interesting are the hearings in 1965, when pharma companies tried to limit the law to instances where national security required it.  This was in response to the USG using the law several times to buy cheap generic drugs from Italy, despite US patents.  In those hearings, as we describe, “the Comptroller General and representatives of agencies argued emphatically against the change. They noted that the amendment would impose the burden of evaluating claims of patent infringement on agencies. They also argued that such an amendment would “forgo one of the valuable powers which the Government has to assure fair prices,” and to remedy “exorbitant pricing” where it was present. Ultimately, the industry’s entreaties were rejected, and § 1498’s language remains identical to that enacted in 1942.”

On Oct 25, 2016, at 11:23 AM, Jamie Love <james.love at keionline.org<mailto:james.love at keionline.org>> wrote:

​Give the interest in the 28 USC 1498 options for compulsory licensing,
some people may want to review the history of the act, as reported by
the United
States Court of Appeals for the Federal Circuit  in ​ Zoltek Corp v US
(2009-5135),   The sections of the option describing the changes in the law
in 1910, 1918, 1942, 1949 and 1960 are interesting.   We have the
discussion on this page.

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