Glen, this is actually more of a compulsory licensing regime than any type of exception to patent protections. The "authorization and consent" only moves the liability over to the government and limits liability. That is, the patent holder is still entitled to compensation, but is only permitted to sue the U.S. government, not Jackson Laboratory. They can also only get "reasonable" compensation from the government.
We have similar clauses in Canada. The Patent Commissioner may authorize any government to use a patented invention, paying only "adequate" renumeration. The Canadian version of this mechanism doesn't explicitly shield third parties, but the same protection likely applies as long as the third party acts as the government's agent.
I've never heard of this clause actually being used (though it quite possibly has been). There's actually quite a few exceptions and public-good provisions that exist in patent systems -- ie. the international agreement, TRIPS, even allows governments to provide exceptions for urgent situtations and even "public non-commercial use". Unfortunately, there's a lot of pressures from commercial industries for government to not use these exceptions....
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Kent Mewhort (
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