Innovation and Intellectual Property Issues in Homeland Security (CRS Report for Congress)
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| Release Date |
Revised Jan. 17, 2008 |
| Report Number |
RL32051 |
| Report Type |
Report |
| Authors |
John R. Thomas, Resources, Science, and Industry Division |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
The U.S. government and private firms alike seek high technology solutions to detect and prevent future terrorist attacks, as well as to respond to any future attacks that do occur. Some concerns exist, however, that patents, trade secrets or other intellectual rights may impede the prompt, widespread and cost-effective distribution of innovations that promote homeland security. In 2001, these concerns arose with respect to pharmaceutical CIPRO, an antibiotic that treats inhalation anthrax. Some commentators called for the U.S. government to "override" a privately owned patent in order to distribute CIPRO to persons who were potential anthrax victims. Although the patent holder ultimately chose to increase production of CIPRO and lower costs, this scenario remains a possibility for other technologies that bear upon homeland security.
Perhaps not fully appreciated during the CIPRO incident was the fact that existing laws provide mechanisms for addressing potential conflicts between intellectual property rights and homeland security needs. The principal statute concerning U.S. government use of intellectual property is 28 U.S.C. § 1498. This statute allows the federal government to exercise eminent domain authority against private intellectual property rights. As a result, the federal government may use patented inventions without the prior consent of the patent owner, subject to an obligation to compensate the rights holder on a monetary basis. The federal government may not be enjoined from infringement of an intellectual property right. Intellectual property owners may enforce this government compensation obligation by bringing suit in the U.S. Court of Federal Claims.
A number of more specialized statutes, such as the Atomic Energy Act, also allow federal government officials to declare a compulsory license with respect to a particular patent. Reportedly these provisions have been used infrequently. Legislative initiatives have proposed that U.S. law provide for other kinds of compulsory licenses, including a compulsory license that the government could invoke during a public health emergency. Existing legislation and proposed reforms should be evaluated in view of the Agreement on Trade-Related Aspects of Intellectual Property Rights. This "TRIPS Agreement" places some limits on the ability of WTO member states to award compulsory licenses for the use of a private person's patented invention.
If an invention was developed using federal government funding, the government may possess certain rights in that invention even though the government contractor obtained a patent. Many entities of the federal government enjoy the statutory authority to purchase a patent or other intellectual property right.
Several other statutes and legislative proposals also concern issues at the intersection of homeland security and intellectual property. The Invention Secrecy Act controls the disclosure of inventions that raise national security concerns. Legislative proposals would also call for patent term extensions to award technological progress in anti-terrorism technologies.
