January 7 : October 14

October 14, 2002

• John C. O’Quinn, Protecting Private Intellectual Proberty from Government Intrusion: Revisting Smithlink and the Case for Just Compensation, 29 Pepp. L. Rev. 435 (2002)
  
  This Article addresses the curtailment of intellectual property rights in the name of government interests that has emerged at the turn of the millennium. Part I examines SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc., 211 F.3d 21 (2d Cir. 2000), cert. denied, 531 U.S. 872 (2000), in which the Second Circuit held that, in light of FDA policy, a generic drug manufacturer would not be liable for infringing a pioneer drug's copyrighted label. Looking past the specifics of the SmithKline decision, Part II takes a broader view at the interaction between IP rights and the administrative state. In particular, the Article focuses on a small sampling of the ways in which the FDA and other federal agencies encumber or intrude upon, for better or for worse, one's intellectual property. Part III examines how the Supreme Court's federalism and sovereign immunity jurisprudence has restricted the ability of private IP owners to prevent infringement, particularly by state governments. Intellectual Property finds itself at the crossroads of the two major "jurisprudential projects" of the Rehnquist Court: revitalizing Property Rights and States’ Rights. Part IV considers a constitutional "takings" theory of infringement as a means of protecting IP rights from the government, particularly against state actors cloaked in the veil of sovereign immunity. The Article suggests that Congress could create a cause of action for takings of intellectual property, which may be brought in federal court. Thus, Part IV of this Article seeks to answer one of the unanswered questions from Florida Prepaid: what currency does the Just Compensation Clause provide in questions of infringement?
  
  The Article argues that with the Takings Clause moved from the distant background to the forefront of intellectual property protection, courts will be guided by the principle of constitutional avoidance, and thus will seek more equitable resolutions, rather than simply allowing IP rights to be trumped. Only by discerning the full applicability of the Takings Clause to IP rights and seizing upon these protections can federal and state agencies be held accountable to the laws that protect intellectual property. The Article concludes that if future litigants and adjudicators appreciate the full potency of the Takings Clause with respect to intellectual property, then the growing gaps in IP protection can be closed, providing much needed security for the intellectual assets that are the building blocks of the Twenty-First Century economy. m

January 7, 2002

• In Festo USA Corp. v. SMC, the Supreme Court will consider on January 8 whether the U.S. Court of Appeals for the Federal Circuit (CAFC) was correct when it rejected the so-called doctrine of equivalents, a cause of action established in 1854 that allows patent owners to pursue infringement claims when alleged infringers do not literally violate a patent. For more details, click HERE.