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Old 19th January 2006, 11:06 AM   #5

Join Date: Jan 2006
Posts: 1
Default Eminent Domain and IP

Anita -

Wanted to thank you again for having me on your show, and I hope you don't mind that I'm responding here.

When I talk about "public benefit" and the threats of eminent domain to IP rights, I'm thinking about the exigencies of public crises..

Assume a scenario in which company A has the patent rights (ie, the intellectual property rights) to manufacture and distribute an anti-viral drug to combat a particularly noxious and dangerous strain of flu. I dunno, call it something like an "avian flu". Said hypothetical avian flu comes to the United States, starts an epidemic, and all of a sudden we're in national crisis....

But either company A charges too much for the drug, or they can't produce enough of it in time, so the US "takes" the patent, turns it over to another or a series of other companies, and Company A no longer holds sole dominion of their IP.

Now, this could either be the opening shot for the federal government to take other drug patents for the great public good, or it could be one manifestation. Think about all of the fights that have happened over the re-importation of drugs sold outside the US - what's to stop an administration hostile to pharmaceutical company intellectual property rights from exercising the powers of eminent domain over the patents of popular, but expensive, everyday drugs in order to make cheaper generics available to the public?

The same possiblities hold true with certain types of software, technologies, etc.

So, I think it's not only not-far fetched, but entirely possible, given the right (or wrong, depending on your perspective) set of circumstances.

Thanks again. Keep up the great work, Anita!

- Andrew Langer

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