Eminent Domain over Patents?

Can a state use its power of eminent domain to obtain public control of a patent in order to promote lower drug prices? One D.C. Councilman hopes so. The American Prospect reports: Patents Pending: “[District of Columbia Councilman David] Catania, a Republican who recently registered as independent after breaking with President Bush over the same-sex-marriage issue, introduced a compulsory license bill February 1. It authorizes Washington, D.C.’s mayor to declare a health emergency and, under eminent domain authority, issue a compulsory license to a generic firm to produce select patented drugs.”


  1. Even if this proposal passes 5th Amendment scrutiny, how will it stand up to federal supremacy? The federal government has exclusive jurisdiction to grant patent rights to the inventor, and yet a local government wants to take some of those rights under the guise of eminent domain?

  2. It’s not exactly the “guise” of eminent domain. The gov’t is entitled to take property provided they ensure “just compensation” to the owner. Intellectual property is property all the same, while I grant that determining just compensation in this case will be both difficult and time-consuming. Ultimately this is a (effective)bargaining strategy which forces drug companies to lower prices rather than risk potentially invasive process reviews and hearings.

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