This Paper explores the relationship between real and intellectual property and proposes a framework for analyzing takings of patent rights under the Fifth Amendment. Part II introduces the Takings Clause and the Patent Clause, highlighting the judicial debate regarding whether patent rights are “private property” within the scope of the Fifth Amendment. Next, Part III begins with a primer on Fifth Amendment jurisprudence, explaining the possessory and regulatory takings doctrines and how they apply to real property. Part III then introduces a takings framework for patent law based on real property precedent.
Part IV tests the proposed framework by analyzing three modern takings issues: (1) congressional modification of patent protection; (2) creation of a public domain for biomedical research by eliminating the right to exclude from some “blocking patents”; and (3) congressional elimination of DataTreasury’s right to exclude other banks from using its patented check-imaging technology. Finally, Part V will return to the debate regarding whether the Takings Clause applies to patent law. Armed with an understanding of how the Fifth Amendment would apply to patent rights, this Paper concludes that the Takings Clause should apply to patent rights.