Among other efforts, the U.S. government and private firms are seeking high technology solutions to detect and prevent such attacks, as well as to respond to any future attacks that do occur. On the other hand, some commentators have expressed concern that the existence of intellectual property rights may impede homeland security needs. Nonetheless, 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. Patent rights may also facilitate technology transfer. Government Use of Privately Owned Intellectual Property

Episodes such as the Cipro incident have raised the possibility that intellectual property rights may clash with homeland security needs. Another is that the federal government purchase any applicable patents from their owners. This authority is ordinarily termed "eminent domain." This government right is not unlimited, however. As a result, the U.S. government effectively enjoys the ability to declare a "compulsory license" that allows it to use a patented invention without obtaining the permission of the patentee. Under § 1498(a), all patent suits against the U.S. government are litigated in the U.S. Court of Federal Claims. In such cases the private contractor may not be enjoined from infringing the patent while performing a government contract. Other Compulsory Licenses

As noted previously, 28 U.S.C. The bill provided in part:
In determining the reasonableness of remuneration for use of a patent, the Secretary of Health and Human Services may consider—
(1) evidence of the risks and costs associated with the invention claimed in the patent and the commercial development of products that use the invention;
(2) evidence of the efficacy and innovative nature and importance to the public health of the invention or products using that invention;
(3) the degree to which the invention benefitted from publicly funded research;
(4) the need for adequate incentives for the creation and commercialization of new inventions;
(5) the interests of the public as patients and payers for health care services;
(6) the public health benefits of expanded access to the invention;
(7) the benefits of making the invention available to working families and retired persons;
(8) the need to correct anti-competitive practices; and
(9) other public interest considerations. The TRIPS Agreement addresses a number of intellectual property laws, including patents, copyrights, trademarks and trade secrets. The TRIPS Agreement places some limits upon the ability of WTO member states to award compulsory licenses for the use of a private person's patented invention. Other Issues at the Interface Between Intellectual Property and Homeland Security

Alongside the various laws pertaining to U.S. government use of subject matter protected by an intellectual property right, other legislation relates to the issues at the intersection of homeland security and intellectual property. Government Purchase of Intellectual Property

In addition to invoking a compulsory license of a proprietary right, another government option is to seek a voluntary license, or simply purchase outright, an intellectual property right that pertains to homeland security. Recognizing this potential, Congress enacted the Invention Secrecy Act of 1951 in order to control the disclosure of certain inventions based upon concerns of national security.
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.