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The Fifth Amendment’s Compensation Clause contains only a few simple words: “nor shall private property be taken for public use without just compensation.” Yet these simple words have confounded legal minds for over 200 years, and as Congress has contemplated various patent law reforms in recent decades, the specter of the Fifth Amendment looms on the horizon. Conventionally, commentators and judges break down the clause into a few diferent components, each of which has generated a voluminous body of caselaw and corresponding scholarly inquiry. First, there is the question of takings: How does one know if something has been “taken” to begin with? Second is the “public use” requirement, which is often treated as an outright prohibition against takings for “private use.” Finally, when the other conditions are met, what constitutes “just compensation”? But the scholarship has largely neglected, by comparison, the clause’s crucial, first component. Namely, what does the clause mean by “private property”? This article seeks to bridge the gap in the literature by addressing this question of increasing practical importance. Namely, does the Compensation Clause apply to patents for inventions? The question, put slightly diferently, is whether patents should be considered “private property” within the meaning of the term as used by the Compensation Clause. Several recent scholars have argued that it does. In contrast, this article ofers the first, comprehensive analysis—considering theory, history, constitutional textual and structural dissection, judicial interpretations, and the nature of patents—concluding that from all of these perspectives, patents do not fall within the Fifth Amendment’s Compensation Clause.

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NYU Journal of Intellectual Property and Entertainment Law