Notice & Comment

Ad Law Reading Room: “Public Patent Powers,” by Laura Dolbow

Today’s Ad Law Reading Room entry is “Public Patent Powers,” by Laura Dolbow (soon to be of Colorado Law), which is forthcoming in the Michigan Law Review. Here is the abstract:

Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This Article provides the first comprehensive survey of existing laws that expressly authorize agencies to control patents. I locate 113 express conditions across 68 laws that expressly authorize executive actors to make some form of decision about patents. These powers, which I refer to as “public patent powers,” allow the government to use patented inventions, to obtain patents, to authorize third parties to use patented inventions, and to regulate how patents are used. Agencies have used many of these powers, but they have been reluctant to use others. Notably, agencies have refused to grant licenses on patents covering federally funded drugs, despite multiple requests to do so.

The descriptive account of public patent powers has several implications for patent regulation. The landscape of public patent powers shows different actions that the Executive Branch could take without the need for any legislative action when patents create policy concerns, as is currently happening with high drug prices. Themes in public patent powers and their use also reveal consistent policy judgments that have been present throughout the history of patent regulation in the United States. These themes create a framework for identifying contexts where executive control over patents may be appropriate and politically feasible. The descriptive account also suggests that the Supreme Court’s decision in Oil States v. Greene’s Energy may have broader implications than previously recognized. Moving forward, this Article contends that the Executive Branch should create an interagency framework to guide how agencies use public patent powers and that courts should consider themes in public patent powers when deciding whether to grant injunctions in patent cases.

“Public Patent Powers” is a valuable deep dive into the various and sundry authorities allowing agencies to alter the rights associated with patented inventions. Particularly interesting is Dolbow’s use of her descriptive findings to unearth a set of values lurking behind the law on the books. She then uses those values not only to enhance our thinking about the delegations of authority that provide the focus of the paper but also to illuminate persistent issues involving judicial remedies and even the nature of patent rights themselves. Give it a read!

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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