Legislation such as the Digital Millennium Copyright Act has skewed the balance of intellectual property rights in favor of copyright and patent holders, to the detriment of society. Little passes into the public domain or can be utilized by the public without paying licensing fees. In the software community, the GNU General Public License (GPL) has emerged as a tool for giving rights back to the public. But there is still an open question of whether the license is enforceable. This issue is that the forefront of the debate in how to correct the balance of rights because a new version of the GPL will be released March of 2007.

The Free Software Foundation and the Open Source Community argue that GPL is legally enforceable because it is a non-contractual license, similar to licenses under real property law. Practitioners generally claim that the GPL is an enforceable contract. But neither position is valid. Non-contractual licenses have no precedent in intellectual property and are revocable at any time by the licensee. The GPL cannot be a contract because the consideration requirement is not met.

This article proposes that the GPL is in fact, a failed contract. Licensors can enforce the GPL through an infringement action under the Copyright Act. Licensees who relied on the GPL to their detriment can enforce the GPL through a state law promissory estoppel claim. The article then suggests two defenses that can be raised when the plaintiff’s software violates the GPL—unclean hands and copyright misuse.

Several federal courts of appeal have ruled recently on the issue of whether a pharmaceutical patent infringement settlement, pursuant to which a generic drug manufacturer agrees to forgo marketing a particular drug in return for monetary payments from a patent-holding “pioneer” drug manufacturer, is a violation of antitrust law. These payments are termed “reverse payments” because, contrary to normal settlements, the plaintiff makes a lump sum payment to the defendant. Reverse payments have sparked considerable academic comment and controversy. Even more recently, the Federal Trade Commission and the Solicitor General have expressed views on the issue, in the context of the Schering-Plough litigation.

This Article describes the regulatory framework underlying reverse payment settlement agreements and the patent infringement litigation from which they derive. It then examines cases that have addressed the antitrust issues created by reverse payments. It compares academic commentary on the relevant antitrust issues. Finally, this Article assesses the most recent decisions by the Second and Eleventh Circuits.

Transcript – On October 12, 2005, the Federalist Society engaged in two debates regarding intellectual property, the right to health, and human rights.

First, the Federalist Society’s Intellectual Property Practice Group and the Indianapolis Lawyers Chapter presented a discussion entitled “Intellectual Property and International Human Rights.” Panelists included: John S. Gardner, former General Counsel, U.S. Agency for International Development, and former Deputy Assistant to President George W. Bush; Robin Gross, Executive Director and Attorney, IP Justice; and Robert Sherwood, International Issues Advisor, the Federalist Society Intellectual Property Practice Group. Professor F. Scott Kieff moderated. Topics included the problems associated with defining health care as an international human right, copyright extensions and enforcement mechanisms, and intellectual property protection as a tool of economic development.

Second, the Federalist Society presented “Life, Liberty, and Intellectual Property,” which included comments by Professor Tom W. Bell, Professor of Law, Chapman University Law School and Professor Adam Mossoff, Assistant Professor of Law, Michigan State University College of Law with Professor Mark Schultz moderating. Professor Bell advocated minimal intellectual property protections due to the inherent violations of natural rights that such protections oppose, while Professor Mossoff argued that IP rights flow directly from traditional natural rights.

                          Notes

Medical science stands on the verge of developing molecular and genetic therapies capable of slowing, if not reversing, the process of aging. This Note first presents background information on the science of anti-aging. To provide an analysis of possible solutions, this Note next considers the effects arising from the possible introduction of an effective anti-aging therapy, issues involved in obtaining FDA approval for such a process, arguments supporting and challenging a government ban on anti-aging, and arguments that may be used to advocate for universal access to anti-aging therapies. Finally, this Note concludes that our legal tradition enables us to aggressively support an anti-aging therapy in an intelligent and responsive manner. Consequences stem from anti-aging, but it is essential to remember how technology integrates into society and that there will be opportunities for remedial legislation to address harmful consequences that arise or threaten to arise.

This Note proposes to assess the role of government with respect to inducement prize contests and their underlying technologies. First, it offers an overview of inducement prizes, including descriptions of basic attributes, sponsorship and administration, and comparative advantages relative to other instruments of public policy in science and technology. Second, it examines, via case studies, differences in the public policy treatments of underlying technologies advanced by selected inducement prizes. Pursuant to such examination, this Note analyzes factors involved in the decisions whether to use inducement prizes as instruments of science and technology policy and what measures to pursue to advance or retard innovation in underlying technologies given the existence of relevant inducement prize contests. Finally, it suggests conditions under which government might use inducement prizes as instruments of public policy and provides guidelines for how government might address disputed or disfavored technologies advanced by inducement prize contests.