[Ip-health] Patent thickets

Outterson, Kevin mko at bu.edu
Thu Aug 21 07:26:50 PDT 2014


Short answer to a complex question:  US states cannot issue patents (federal law under the Constitution) but US state governments have a measure of immunity from IP infringement litigation (the 1999 Florida Prepaid case) and they have a plausible eminent domain power (with just compensation) over property. The District of Columbia passed legislation to that effect in 2005, but it was struck down on pre-emption and commerce clause grounds.  Pharmaceutical Research and Manufacturers of America v. The District of Columbia, et al., Memorandum Opinion of December 22, 2005 at 12-18. (D.C. DC 2005). Both the law and the litigation strategy could have significantly improved the chances for DC.  My short paper from 2005 is here:  http://www.reducedrugprices.org/av.asp?na=26.  

Some other links:  

http://www.morganlewis.com/documents/BayBioABAIPLResolution413-1.pdf
http://www.ipprospective.com/copyright-caucus/intellectual-property-and-eminent-domain-a-plausible-combination/
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1226&context=californialawreview
http://www2.aipla.org/MSTemplate.cfm?Section=State_Actions_Regarding_Compulsory_Licensing&Site=Patent_Law&Template=/ContentManagement/ContentDisplay.cfm&ContentID=8380

Kevin
___________________
Professor of Law & N. Neal Pike Scholar in Health and Disability Law - Boston University
Visiting Fellow, Chatham House
Editor in Chief, Journal of Law, Medicine & Ethics
Blogging health law at The Incidental Economist
Research papers at SSRN & Google Scholar
@koutterson

On Aug 21, 2014, at 9:19 AM, George Carter <gmcfiar at gmail.com> wrote:

> An article on patent thickets:
> 
> http://law.unh.edu/assets/images/uploads/publications/idea-vol53-no1-woolman-fishman-fisher.pdf 
> 
> Thoughts?
> 
> Also: I am still trying to figure out if a STATE (like Oregon) can issue a compulsory license?
> (As opposed to a "state actor" like Romania or the United States).
> 
> George M. Carter
> 
> 
> 
> 
> 
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