Taking inventors' lunch money: provide incentives for sensitive technology research under the Patriot Act.

(16.) See Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229-30 (1964) ("Patents ... are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention. During that period of time no one may make, use, or sell the patented product....").

(17.) See Evan L. Schwartz, Sparking the Fire of Invention: One of the Most Radical Business Ideas of the 21st Century May Be the Creation of a New Method of Invention-Individualistic, Global, and not Bound to Corporate Missions, TECH. REV. 34 (2004), available at http://www.crv.com/NewsEvents/News/ISFTechReview5-04.pdf (discussing how even wealthy corporations do not want to put money into new inventions, but more and more companies are nonetheless dedicated to pursuing invention for their own sake).

(18.) Bioshield II: Responding to An Ever-Changing Threat: Hearing Before the S. Comm. on Health, Education, Labor, & Pensions and S. Comm. on the Judiciary, 108th Cong. 1 (2004) [hereinafter Bioshield II] (testimony of Jeffrey P. Kushan, Partner, Sidley Austin Brown & Wood, LLP), available at http://www.senate.gov/comm/judiciary/general/testimony.cfm? id=1327&wit_id=3895.

(19.) See 35 U.S.C. [section] 122(b)(1)(A) (2000) (mandating that "each application for a patent shall be published[] ... promptly after the expiration of a period of 18 months."). A publication "shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention." Id. [section] 112.

(20.) See ADELMAN ET AL., supra note 1, at 525-26.

(21.) See 35 U.S.C. [section] 112.

(22.) See Bioshield II, supra note 18 (discussing patent litigation). Because the information is published, it is available for use in legal and illegal manners. See id. ("The patent must describe ... the invention so completely [as to] allow someone of ordinary skill in the art to replicate [it] without difficulty."). Infringing uses could result in litigation, but the information is still available for all to benefit from via the generation of new ideas or otherwise. See id. (citing litigation as the only means of enforcing patents).

(23.) Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480-81 (1974).

(24.) See, e.g., James E. Rogan, Remarks at the Hearings on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy (Feb. 6, 2002), available at http://www.ftc.gov/opp/intellect/rogan.htm (explaining that the patent system, by requiring full disclosure of inventions, opens them up for inspection, thus allowing others to make improvements and further innovations).

(25.) See 35 U.S.C. [section] 181 (2000): Hornback v. United States, 36 Fed. C1. 552, 553-54 (1996), aff'd, 405 F.3d 999 (Fed. Cir. 2005).

(26.) 35 U.S.C. [section] 181; U.S. PATENT & TRADEMARK OFFICE, MANUAL FOR PATENT EXAMINING PROCEDURE [section] 115 (Rev. 5 Aug. 2006) [hereinafter REVIEW OF APPLICATION], available at http://www.uspto.gov/web/offices/pac/mpep/mpep_e8r5_0100.pdf; FEDERATION OF AMERICAN SCIENTISTS, INVENTION SECRECY ACTIVITY, available at http://www.fas.org/sgp/othergov/invention/stats.html (last visited Apr. 1, 2007).

(27.) 35 U.S.C. [section] 181. The Commissioner of Patents runs the patent arm of the U.S. Patent and Trademark Office (USPTO). U.S. Patent & Trademark Office, Patent Organization, http://www.uspto.gov/web/offices/pac/index.html (last visited Apr. 1, 2007).

(28.) 35 U.S.C. [section] 181. Under the Homeland Security Department created by President George W. Bush, this is a concept that is expansive considering the broad reach into many areas of government that are justifiably linked together because of national security interests. White House, Department of Homeland Security, http://www.whitehouse.gov/omb/budget/fy2005/homeland.html (last visited Apr. 1, 2007).

(29.) 35 U.S.C. [section] 181. See, e.g., Mark A. Lemley & Kimberly A. Moore, Ending Abuse of Patent Continuations, 84 B.U.L. REV. 63, 72 n.29 (2004).

(30.) If the patent application is withheld for national security reasons, then the inventor will be denied the limited monopoly period they would otherwise be afforded under the current regime. See 35 U.S.C. [section] 181.

(31.) 35 U.S.C. [section] 183 (2000).

(32.) Id.; see also REVIEW OF APPLICATION, supra note 26 (nothing the government's ability to withhold publication and issue a secrecy order for a patent that might be adverse to national security). The applicant has six years after notification that the patent is going to be withheld to apply for compensation and must do so through the government agency that declared the invention adverse to national security interests, not through the USPTO. 35 U.S.C. [section] 183.

(33.) 35 U.S.C. [section] 183. One could infer that such a right is in furtherance of the Takings Clause (derived from the Fifth Amendment of the U.S. Constitution) by affording recovery from such takings where the value of their patent may not be realized until after some period of development in the art that makes their invention realizable. Cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (demonstrating that trade secret taking by forced disclosure of research testing data to the Environmental Protection Agency could qualify as a taking of property--although it was held not to be a taking in this situation--potentially enforceable under the Takings Clause).

(34.) Diamond v. Chakrabarty, 447 U.S. 303, 307 (1980).

(35.) In these instances, 35 U.S.C. allows for compensation by the government agency or department which sought to withhold the patent application through the USPTO. 35 U.S.C. [section] 183. The Federal Circuit has held that the remedy provided for by 35 U.S.C. [section] 183 is the exclusive remedy available for patent applications that have been withheld under a secrecy order. Hornback v. United States, 91 Fed. App'x 679, 681-83 (Fed. Cir. 2004). Further, they held this compensation also extinguishes any claim the inventor may present under the Takings Clause. Id. at 682.

(36.) 35 U.S.C. [section] 181 (2000).

(37.) See World Bank, Total GDP 2005, http://siteresources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf (last visited Apr. 1, 2007). The patent system strikes "a careful balance between the need to promote innovation and the recognition that imitation and refinement through imitation are both necessary to invention itself and the very lifeblood of a competitive economy." ADELMAN ET AL., supra note 1, at 4.

(38.) See discussion supra Part I.A.

(39.) World Trade Organization, Understanding the WTO--Intellectual Property: Protection and Enforcement, http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm (last visited Apr. 1, 2007).

(40.) Matt Nesvisky, Intellectual Property Rights and International Technology Transfer, NBER DIGEST, Sept. 2005, at 5, 5-6, available at http://www.nber.org/digest/sep05/sep05.pdf.

(41.) Patent regimes vary from country to country, and this variance carries into the way that different countries treat the relevant laws of other countries. See Elizabeth M. Nimmo, United States Policy Regarding Technology Transfer to the People's Republic of China, 6 NW. J. INT'L L. & BUS. 249, 272-74 (1984) (stating that China's patent regime as it relates to foreign intellectual property); Andrew Kramer, Starbucks' Move on Moscow Market is Stymied by a Trademark Squatter, INT'L HERALD TRIB., Oct. 12, 2005, at F3; Tensions with China: The New Face of Globalisation, ECONOMIST, Nov. 17, 2005, at 50 ("China is notorious for tolerating rampant intellectual-property theft.").

(42.) Patent Cooperation Treaty, June 19, 1970, 28 U.S.T. 7645, 1160 U.N.T.S. 231.

(43.) Id. art. 3-4.

(44.) Christopher D. DeCluitt, International Patent Prosecution, Litigation and Enforcement, 5 TULSA J. COMP. & INT'L L. 135, 137-38, 141 (1997) (contrasting the periods before and after the Patent Cooperation Treaty).

(45.) See WORLD INTELLECTUAL PROP. ORG., PROTECTING YOUR INVENTIONS ABROAD: FREQUENTLY ASKED QUESTIONS ABOUT THE PATENT COOPERATION TREATY (PCT) 4 (2002), http://www.wipo.int/pct/en/basic_facts/faqs_about_the_pct.pdf. The "singular point of entry" for patent applicants is the inventor's national patent office (assuming that the country of origin is a PCT participant). Diana L. Oleksa, The Advantages of Using the Patent Cooperation Treaty, EXPORT AMERICA, Jan. 2002, at 16, available at http://www.ita.doc.gov/exportamerica/TechnicalAdvice/ta_PCT.pdf.

(46.) Patent Law: Going Global, ECONOMIST, June 15, 2000, at 83. Previously, an inventor had to file for a patent in all the representative countries to effectuate intellectual property interests in each of them. GRAIN, WIPO Moves Toward 'World" Patent System (July 2002), http://www.grain.org/briefings_files/wipo-patent-2002-en.pdf.

(47.) Patent Cooperation Treaty, supra note 42, at 7648.

(48.) Id. art. 27(8).