Intellectual Property and Eminent Domain: A Plausible Combination?

Most of us are familiar with eminent domain law which pertains to taking of property for the public use that is owned by a private person. But dose his law apply to all private properties including intellectual rights? The answer is that it becomes complicated when the condemnation is applied to intellectual properties. The supreme Court of the US recognizes that the power of eminent domain conferred under the Fifth Amendment is applicable to states via the Fourteenth Amendment. Therefore the private property that belongs to someone has to be taken for the takings clause to be invoked.

The takings clause mainly applies to the land, and the court always gives importance to analyzing the public need for such a taking. Going by this, it is quite possible that any private property, not necessarily land, when taken for public use, the court would analyze the public use and conclude based on it’s status.

Intellectual Property

There are different types of intellectual properties. Broadly speaking it can be of two types:

Intellectual property related to arts or copyrights.

Intellectual property related to Industry like patents and trademarks.


The rights of the author literary (books and other types of writings) as well as artistic works (Paintings, musical compositions, sculpture etc.) are protected by copyright for a period of 50 years from the time of the death of the author.


The protection is given for a specified time period which is usually 20 years. The purpose is to give protection, to encourage innovation, and help in recovering the investment on development of the technology.

Applying eminent domain provisions to intellectual properties can be plausible. The court has expressed that it may be applied to any private property even if it is not land.

Takings Power with respect to Intellectual Property

The government can use two sources to effectually apply eminent domain to intellectual properties.

1.The eminent domain power that has already been executed for the redevelopment of buildings and land maybe be extended to intellectual properties like patents on a drug.
2.In 1999, the Supreme Court of the US held in the case of Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank that the states are by and large immune from infringement of the patent if they have afforded ‘just compensation’ to the patent holder. The infringement of the patent is not unconstitutional for the state if it has not failed to provide the remedy.

In a broad sense, it implies that holding intellectual property protection does not mean absolute right.

The Section 1498(a) of Title 28 of the U.S. Code implies that if the Government of the US or any of its contractors uses or manufactures a product covered by the patent, the patent holder cannot get the court to stop it and suing for infringement is not possible. The only judicial remedy that the patent holder can seek is to be provided “reasonable and entire compensation” in the sole court where non-tort claims against the United States are handled.


It can be inferred from the provisions of certain sections of US law and US Code pertaining to eminent domain that intellectual rights protection does apply to the government of the United States. If the Government uses the patent for the manufacture or similar purpose, the patent owner cannot claim it as an infringement or move the court to stop it. The patent owner can only seek compensation.