DOE Patent Compensation Board — Atomic Energy Patents and Compulsory Licensing

The DOE Patent Compensation Board is a specialized administrative tribunal within the Department of Energy that handles one of the most unusual corners of U.S. intellectual property law: compulsory licensing of privately owned patents that are essential to the production or utilization of nuclear energy. Under the Atomic Energy Act of 1954, the federal government can compel a private patent holder to grant a license — including to a competitor — when the patent is "affected with the public interest" in atomic energy, or when a patent holder refuses to license and the public interest requires the technology to be used. The Board also determines royalties and compensation for patent owners whose inventions are licensed under these compulsory provisions. The regulations governing these proceedings are at 10 CFR Part 780.

Legal Authority

• 42 U.S.C. § 2183 — Atomic Energy Act, Section 153: authorizes the Atomic Energy Commission (now DOE) to grant compulsory patent licenses for patents essential to nuclear energy production when a patent holder unreasonably refuses to license and public interest requires; the board sets fair compensation
• 42 U.S.C. § 2187 — Atomic Energy Act, Section 157: establishes the Patent Compensation Board to hear claims for compensation from patent holders whose patents are used or required for nuclear energy programs; authorizes the Board to award royalties
• 42 U.S.C. § 2203 — Atomic Energy Act, Section 173: general authority for the Board's administrative procedures
• 35 U.S.C. § 183 — Invention Secrecy Act: authorizes compensation to inventors whose patent applications are kept secret by government order in the national interest; the Patent Compensation Board can award compensation for secrecy orders on nuclear-related inventions
• 10 CFR Part 780 — DOE regulations governing Patent Compensation Board proceedings, application procedures, hearing rules, and compensation standards

Key Mechanics

The Patent Compensation Board is a three-member panel that functions as an administrative court for nuclear patent claims. It hears two main types of cases: compulsory licensing proceedings (where a party seeks a license to a privately-held nuclear patent and the holder refuses) and compensation proceedings (where patent holders seek royalties or other payments for government use of their patents under the AEA or the Invention Secrecy Act). Board decisions are subject to appeal to the Court of Claims (now the Court of Federal Claims). The compulsory licensing authority reflects Congress's judgment that nuclear energy is a public good — no private monopoly should be able to block nuclear energy development or nuclear weapons production simply by refusing to license a key patent.

Current Rule (2026)

What This Rule Does

The Atomic Energy Act of 1954 created a unique intellectual property regime for nuclear technology — one that reflects the government's determination that nuclear energy is too important to national security and public health to be locked up in private patent monopolies. The Act gives DOE (and its predecessors, the Atomic Energy Commission and the Energy Research and Development Administration) several tools for overriding private patent rights in the nuclear space:

Section 153a — Declaring patents affected with the public interest: The Board may initiate proceedings to declare a private patent "affected with the public interest" when the patented invention is relevant to the production or utilization of special nuclear material or atomic energy, and when either the patent holder is not making the invention available on reasonable terms, or the public interest requires making the invention available. A declaration under § 153a requires the patent holder to grant licenses on terms set by the Board — in effect, government-ordered compulsory licensing.

Sections 153b and 153c — Mandatory licensing: A person who holds a patent useful for the production or utilization of special nuclear material or atomic energy may apply to the Board to compel the patent owner to grant a license. Under § 153b(2), if a patent has been declared affected with the public interest, any qualified applicant may apply for a license; the Board determines whether to issue the license and on what terms. Under § 153c, the applicant must demonstrate that the invention is of "primary importance" in atomic energy production or utilization, that the applicant is ready to operate a facility or conduct activities using the patent, and that the patent holder refuses to license on reasonable terms.

Section 157 — Royalties and awards: Patent owners whose patents are licensed under the compulsory provisions are entitled to "just compensation" — royalties or awards determined by the Board. The Board applies criteria including the economic value of the compulsory license, the contribution the invention makes to the field, and the royalties typically paid for comparable licenses in the market. This ensures patent holders are compensated even when they cannot refuse the license.

Section 173 / 35 U.S.C. § 183 — Invention Secrecy Act compensation: When the government places a secrecy order on a patent application (preventing publication because the invention would damage national security, including nuclear weapons applications), the inventor may be denied the ability to commercialize the invention for the duration of the secrecy order. Section 173 and 35 U.S.C. § 183 authorize the Board to award compensation to inventors who suffered economic harm from government secrecy orders.

Key Provisions

• § 780.3 — Jurisdiction: the Board has jurisdiction over four categories: (1) § 153a declarations (patents affected with the public interest); (2) § 153b(2) applications (compulsory license applications after a § 153a declaration); (3) § 153c applications (non-availability compulsory licenses); (4) § 157 royalty/award determinations; and (5) compensation under § 173/35 U.S.C. § 183 for secrecy order losses
• § 780.9 — Board composition: the Secretary of Energy appoints a three-member panel to hear each case; the Board has adjudicatory independence from the Department's operational components, though the Department is a formal party to all proceedings (§ 780.6) through the Office of the General Counsel
• § 780.10 — Finality: the Board's decision "shall constitute the final action of the Department" — Board decisions are the final DOE ruling; review is through federal courts, not further administrative appeal within DOE
• § 780.20–780.23 — § 153a proceedings (declaring patent affected with public interest): the Board serves written notice on the patent owner identifying the patent and the basis for the proposed declaration; the owner has 30 days to oppose; if a hearing is requested, the Board proceeds with a formal hearing; the decision turns on whether the patented invention covers atomic energy applications and whether availability is insufficient
• § 780.24 — Criteria for § 153a declaration: a patent shall be declared affected with the public interest when: (a) the invention relates to the production or utilization of special nuclear material or atomic energy; (b) the patent owner has not made the invention available to the industry on reasonable terms; and (c) the declared use of the invention is in the public interest; all three criteria must be met
• § 780.34 — Criteria for § 153b(2) compulsory license: a license shall issue when: (a) the applicant's activities are related to production or utilization of special nuclear material or atomic energy; (b) the patent declared affected with the public interest covers those activities; and (c) the applicant agrees to pay reasonable royalties determined by the Board
• § 780.45 — Criteria for § 153c compulsory license: a license shall issue when: (a) the invention is "of primary importance" in atomic energy production or utilization; (b) the applicant is ready and able to operate a facility using the patent; and (c) the patent holder "refuses" to grant a license on reasonable terms — either outright refusal or demands for unreasonable royalties qualify as refusal
• § 780.53 — Criteria for royalty/compensation determinations: in setting royalties, the Board considers the economic value of the compulsory license to the licensee, the normal royalty rate for comparable licenses in the market, the contribution of the invention to the overall atomic energy enterprise, and the costs the patent holder incurred in developing the invention; the goal is just compensation that approximates what a willing licensor would have accepted in an arm's-length negotiation
• § 780.8 — Security: all proceedings must comply with DOE security regulations and 42 U.S.C. § 2281 (the chapter on classified information in the Atomic Energy Act); classified information relevant to proceedings is protected; the Board takes appropriate steps to ensure hearings involving classified nuclear technology do not compromise national security

How It Affects You

If you hold a patent on technology used in nuclear energy: Your patent rights may be subject to compulsory licensing under the Atomic Energy Act. If DOE initiates a § 153a proceeding, you will receive written notice and have 30 days to oppose. You are entitled to a hearing before the Board and to just compensation (royalties) if a license is ordered. The compulsory licensing mechanism applies most directly to patents on reactor components, fuel processing technology, enrichment processes, and other technology that is essential to civilian nuclear power or defense nuclear programs. In practice, § 153a declarations have been rare — most nuclear patent disputes are resolved through voluntary licensing — but the authority exists and provides DOE with leverage in license negotiations.

If you are a nuclear technology developer or operator seeking a license: If you need to use a patented technology essential to your nuclear facility and the patent holder refuses to license it on reasonable terms, you may apply to the Board for a compulsory license under § 153c. You must demonstrate that the patent is "of primary importance" to atomic energy production, that you are operationally ready to use it, and that the patent holder has refused reasonable terms. The Board will set royalties the licensee must pay. This is an unusual remedy in U.S. patent law (the Atomic Energy Act is one of the few statutes that explicitly authorizes compulsory patent licensing), reflecting the government's view that the public interest in nuclear energy access outweighs private patent exclusivity.

If your invention was subject to a government secrecy order: If the government placed a secrecy order on your patent application to prevent disclosure of classified nuclear weapons or defense information, your ability to commercialize the invention was suspended for the duration of the secrecy order. Section 173 of the Atomic Energy Act and 35 U.S.C. § 183 (the Invention Secrecy Act) authorize you to seek compensation from the Board for financial losses suffered during the secrecy period. The compensation claim must be filed within 6 years after the secrecy order is removed; the Board determines what damages are "just and reasonable."

If you work in nuclear energy policy or technology transfer: The Patent Compensation Board represents the federal government's historic position that the civilian nuclear power program — which grew from weapons research conducted entirely at government expense — should not be monopolized by private patents on government-developed technology. The Atomic Energy Act's § 152 (not in Part 780 but in the same statutory framework) addresses government ownership of inventions made in AEC-funded research. The Part 780 compulsory licensing provisions address the separate problem of private patents on nuclear technology that impede the development of a competitive civilian nuclear industry.

Statutory Authority

This rule implements:

• 42 U.S.C. § 2183 (AEA § 153) — compulsory licensing authority: authorization to declare patents affected with the public interest (§ 153a), issue compulsory licenses on declared patents (§ 153b), issue licenses when patent holder refuses to make patent available on reasonable terms (§ 153c), and authorize foreign use of U.S. patents for atomic energy under international agreements (§ 153e)
• 42 U.S.C. § 2187 (AEA § 157) — royalties and awards: requires just compensation for patent owners subject to compulsory licensing; establishes the Board's authority to determine what compensation is reasonable
• 42 U.S.C. § 2203 (AEA § 173) — compensation for secrecy orders: authority to compensate inventors whose patent applications were suppressed under AEA or Invention Secrecy Act secrecy orders
• 35 U.S.C. § 183 (Invention Secrecy Act) — compensation for damage caused by patent secrecy orders; parallel authority to AEA § 173 for non-atomic-energy classified inventions

Recent Rulemakings

No major amendments since 2001. The Patent Compensation Board's jurisdiction is narrow and its caseload small — most nuclear patent disputes are resolved through negotiated licenses, industry cross-licensing agreements, or DOE's own patent policies under 10 CFR Part 784 (DOE patent waiver authority). The compulsory licensing provisions have been invoked rarely in the civilian nuclear era; their primary function is as a backstop that gives DOE leverage in private-sector patent negotiations.

Pending Action