Friday food for thought: What the government giveth, the government can taketh away
Late last week, the Court of Appeals for the Federal Circuit made it clear that, under current law and judicial interpretation, 
a patent holder has no Fifth Amendment remedy against the United States government for unauthorized use of a patented invention. By denying a petition for rehearing en banc in Zoltek v. United States [.pdf], the Court quietly let everyone know that it believes the Fifth Amendment has no place in patent law. A dissent by Judge Newman and a concurrence by Judges Dyk and Gajarsa helpfully document the issue and, as Crouch points out, possibly help frame it for consideration by the Supreme Court.
With Zoltek as backdrop, these tough questions seem like great food for thought on a Friday morning:
If there is no Fifth Amendment property interest in an issued patent, can there be one in an application for patent?
Can the Patent and Trademark Office commit a Fifth Amendment regulatory taking by finalizing the proposed rule on continuation and RCE limits that essentially eliminates the ability to claim, through continuation practice, properly disclosed inventions in currently pending applications?
While patent holders still have 28 U.S.C. s.1498 as a remedy against the government for unauthorized use of a patented invention, what remedy, other than the Fifth Amendment, does a patent applicant have against the government for arbitrarily limiting his ability to seek protection on his properly disclosed invention?
Is the Patent and Trademark Office celebrating in the wake of Zoltek?
Should we clarify the property interest issue before we finalize the proposed rule?