Discussions of a waiver by the World Trade Organization (WTO) regarding certain intellectual property protections for prevention, containment and treatment of COVID-19 have once again put a spotlight on compulsory licensing and march-in rights. Undeniably the COVID-19 pandemic has changed our lives and the way we do things. However, discussions of compulsory licensing and march-in rights are not new. In the U.S., laws historically have been enacted that affect intellectual property rights during times when the need for technology was of utmost importance.
Congress, reacting to a holding of patent infringement liability on government contractors during World War I, enacted a statute that was later codified as 35 U.S.C. §68 (1926) and re-codified as 28 U.S.C. §1498 to protect wartime contractors from patent infringement. See, Zoltek Corp. v. U.S., 815 F.3d 1302 (Fed Cir. 2012)(describing the history of 28 U.S.C. §1498). The later re-codified and so called “Government Use Patent Law” (28 U.S.C. §1498) provided a shield from patent infringement and provided for compensation to patent owners when the U.S. government utilized their patented technology.
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