Does GM Now Have a "Pass" to Use IP From Other Car Makers?
From the abstract of Adam Mossoff's latest essay:
"This essay explains how a 2006 court decision arising from the manufacture of the F-22 Raptor fighter jet paves the way for government-owned General Motors to steal intellectual property. In Zoltek v. U.S., the Court of Appeals for the Federal Circuit held that a loophole in the Tucker Act (28 U.S.C. § 1498) prevented owners of patented processes from suing the federal government for certain types of unauthorized uses of their patents. The Zoltek court also held that patents are not secured as constitutional "private property" under the Takings Clause of the Fifth Amendment. At the time, many judges and lawyers thought that these statutory and constitutional loopholes for patent-owners were insignificant; at worst, they argued, this benefits only military contractors and the like.
Fast forward four years and the federal government now owns the "new GM." It was inconceivable in 2006 that Uncle Sam soon would be in the business of making cars, not to mention in the businesses of banking and insurance, setting salaries of CEOs, purchasing mortgages, etc., etc. This dramatic turn of events means that court decisions that once seemed exceedingly narrow have acquired new breadth and scope. This essay thus explores how Zoltek justifies extensive infringement of U.S. patents by GM and other firms now working for the federal government. Although it is arguable that denying patent-owners their constitutional rights is insignificant in any situation, the events since 2006 at least suggest that many people spoke too soon when they claimed that Zoltek was of little import or concern."
Read/download "How the 'New GM' Can Steal from Toyota"
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An interesting article by Adam. 28 USC 1498(a) has many potentially "unintended" consequences, including immunity for government-sponsored research that was brought up in Madey v. Duke University.
Apparently Zoltek has fallen out of the public eye because the Supreme Court did not grant cert.
Not true at all. In fact, the really interesting part of the case has just begun.
After cert. was denied, a "vanilla" action was filed by Zoltek in the Federal District Court in Atlanta naming Lockheed Martin as the defendant. Before doing so Zoltek filed a motion with Judge Damich at the COFC requesting that the action be transferred to the District Court. In February of last year Judge Damich issued an opinion deciding in favor of Zoltek and permitting the transfer. To say his opinion came as a complete suprise to the USG and government contractors is an understatement.
With the consent of all parties, the Atlanta action has been stayed, and an appeal of Judge Damich's opinion is now pending before the CAFC.
If anyone is interested, I have copies of all pertinent opinions and briefs, including the amici who are worried about the possibility that Judge Damich's opinion may be upheld on appeal.
Perhaps now the case is in a posture where the courts will finally confront what 1498 really covers and how it interplays with 271.
Mike Slonecker
slonecker@earthlink.net
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