[Pharm-policy] US state immunity

[James Love]

  This Aharonian missive includes a note on US state government immunity
from patent infringement suits.  (Is the USA TRIPS compliant?  No, and
it would take an amendment to the US constitution to become compliant
on this issue).
  
  Jamie 

---------- Forwarded message ----------
Date: Tue, 17 Oct 2000 02:51:03 -0400 (EDT)
From: Gregory Aharonian <srctran@world.std.com>
Reply-To: patent-news@world.std.com
To: patent-news@world.std.com
Subject: PATNEWS: Stambler; Nicotine; Bio IP rights; ants & antibiotics

!20001017  Stambler; Nicotine; Bio IP rights; ants & antibiotics

   [snip]


    --  COMMENT ON STATE GOVERNMENT IP RIGHTS

Recently I sent out a PATNEWS item titled "Science article on state
immunity from patent infringement".  A lawyer reader of PATNEWS sent
in the following comment:
                                      ====

	The issue on state immunity from patent infringement is much, much
broader than just whether and to what extent states are participating in IP.
It actually goes to the proper balance of power between the states and the
federal government under the US consitutional form of government.  The
implications are much broader than just IP.

	The IP cases were originally decided in the context of whether the
federal government can compel state governments to perform under its Article
I powers.  This is significant because current Commerce Clause and Necessary
and Proper Clause jurisprudence basically give Congress a blank check within
the scope of those powers.  If Congress can compel the states under any
Article I power, then the courts eviscerate the federal premise upon which
the US's governance is founded.

	More recent cases were decided under Section 5 of the 14th
Amendment.  Congress invoked this power improperly as an "end run" on the
limitations of its Article I powers because case law already said Congress
could do so.  The argument was founded on a "deprivation of due process",
one of the enumerated circumstances under Section 5, i.e., infringement by
the States was a deprivation without due process of law if they were immune
under the Constitution from in federal court.  This argument has numerous
flaws, the most significant of which is that it's tantamount to an argument
that the Constitution operates unconstitutionally -- an absurdity beyond
the pale.

	I am not advocating that it is good or right for the States to be
immune from suit in federal court.  There are many ways to fix this problem,
Congress just chose the wrong way to go about it.  The tactic Congress chose
would have, if the courts had let them, utlimately resulted in a national,
rather than federal form of government.  That's not necessarily bad,
either, except then the government would be illegitimate in the sense
that it would be contrary to the Constitution.

	The way to get a national government is to amend the Constitution.
This is important because the Constitution defines the parameters of how the
government behaves.  If the government can behave in any manner 5 people on
the Supreme Court say it can, regardless of what the Constitution says, we
are only a short step from a government none of us want.

	The courts have to see this issue in this context, not just the
narrow context of whether the States should be immune.  They have to look at
the mechanics and their implications.  The cases were decided correctly.
Congress just was listening to monied interests who wanted what they wanted
and didn't care how they got it.  Congress should have spent more time
thinking about the right way to do this, instead.


     [snip]
                              ====================

    --  WIPO RULES CANADA'S PATENT TERM HAS TO BE CHANGED SLIGHTLY

Last Thursday, a World Trade Organization body ruled that Canadian legislation
limiting to 17 years the term granted to patents filed before 1 Oct 1989 was
in violation of TRIPS.  The US had filed a complaint, arguing that Canada
should offer retroactive extension under the 1996 trips accord to 20 years from
filing for those patents that qualify.  Canada promises to comply with the
ruling.