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Two Lunch Break Questions

By Tom Fletcher

When there's nothing good on TV at lunch, I get to reading (oh no!). Today, I got to wondering too:

1. Why hasn't the California Law Review updated its website? Here's the current issue. Sadly, no links to the articles. If you don't link to it, no one can read it folks...

2. But what's this? A patent article! Cool! Unfortunately, "Tamiflu, the Takings Clause, and Compulsory Licenses: An Exploration of the Government's Options for Accessing Medical Patents" was a disappointing read (I went on to Westlaw to pull a copy). This typo caused a chuckle: "Through such licenses, the government can infringe on and manufacture a patent for as long as necessary." Yes, thousands of beribboned documents for all!

But what seemed odd was that the author didn't explore the most sensible way for the government to use a patent: just negotiate a license. The article was instead premised on the government having to take the patent owner's intellectual property rights to be able to manufacture a medicine. My biggest concern: "taking" medical patents will destroy any incentive to do medical research. Yes, in this round, we get free Tamiflu. But next time that avian flu (or staph, or whatever) evolves a resistance to Tamiflu, there will be nothing to combat it because no one believed that they could recoup their costs by doing vaccine research. In my opinion, the article takes a dangerous approach by focusing only on compulsory licensing and takings as ways for the government to interact with patent holders.

Ok, I'll add a third thought. For anyone interested in the Eleventh Amendment issue and public university immunity, see this cert petition.

Back to work!

Full post as published by Nuts & Boalts on January 24, 2008 (boomark / email).