MSU College of Law



May 11, 2007

CONTACT: ADAM MOSSOFF: 517/303-1208, or
KATIE GALLAGHER: 517/432-6848,

MSU Law Professor Authors Amicus Brief Filed With U.S. Supreme Court

Professor Mossoff Argues for Fifth Amendment Protection of Patents

EAST LANSING, MIMichigan State University College of Law Professor Adam Mossoff filed an amicus brief in the U.S. Supreme Court today, supporting an appeal filed by the Zoltek Corporation earlier this year. In his brief, Professor Mossoff argues that the Supreme Court should accept Zoltek’s petition and hear the case, which concerns whether patents count as “private property” under the Takings Clause of the Fifth Amendment.

Professor Mossoff was joined in his amicus brief by 27 other law professors from across the nation, including at Yale University, Stanford University, University of Chicago, University of Pennsylvania, and UCLA, among others, who teach and write in the fields of constitutional law, intellectual property law, and property law.

The appeal by Zoltek to the U.S. Supreme Court arose from Zoltek’s lawsuit against the federal government for its unauthorized use of Zoltek’s patented process for making composite carbon products. The government is using these composite carbon materials to add stealth abilities to the F-22 fighter and B-2 bomber.

“This is a profoundly important case because it directly addresses the constitutional security in patents—intellectual property rights that are central to our knowledge-based economy in the twenty-first century,” said Professor Mossoff. “The Federal Circuit has figuratively pulled the constitutional rug out from under patentees, declaring contrary to long-settled precedent that patents are merely special entitlements, not property rights deserving of constitutional protection.”

Although the trial court decided that Zoltek could sue the government for “just compensation” when it used Zoltek’s “private property” without authorization, per the requirements of the Fifth Amendment, an appeals court reversed this decision in March 2006. The Court of Appeals for the Federal Circuit ruled that Zoltek was unable to sue the federal government for compensation because patents are not “private property” under the Fifth Amendment of the Constitution. Zoltek is now appealing to the Supreme Court, asking it to reverse the Federal Circuit. Professor Mossoff’s amicus brief on behalf of 28 law professors supports Zoltek’s petition by highlighting numerous historical decisions by the U.S. Supreme Court and other federal courts that patents are secured under the Fifth Amendment as constitutional private property.

The full text of Professor Mossoff’s amicus brief, including its signatories, is available at

MSU College of Law was in founded in 1891 and is a private institution of higher learning devoted exclusively to professional education in law. The Law College is one of only a few private law schools to be affiliated with a research university, enabling it to provide a comprehensive interdisciplinary legal education program. Classes offered in its state-of-the-art facilities provide students the benefits of a Big Ten campus while maintaining the small school culture. Its 2006 graduates achieved a 93 percent bar examination passage rate nationwide and the Law College’s Intellectual Property and Communications Law Program falls in the nation’s top-20 according to U.S. News & World Report. The Law College is one of the oldest continuously operating independent law colleges in the nation. For more information about the Law College, visit