Commercialization of the State University: Why the Intellectual Property Protection Restoration Act of 2003 Is Necessary

Abstract

At first blush, major state universities and colleges appear to be well-balanced with their private counterparts: Each contains strong academic programs with Nobel Laureates and other notable scholars in their research labs and lecture halls; each fields large numbers of strong sports teams; and each benefits from the current federal intellectual property rights regime, whereby valuable patents, copyrights, and trademarks have been claimed. Despite this apparent parity, however, state universities have a surprising economic advantage over private universities—state universities can profit from their Eleventh Amendment immunity against damage claims for intellectual property infringement. Private institutions are not similarly immune. This disparate treatment of intellectual property rights is particularly important because of several recent cases involving universities (both public and private) against private entities. Two noteworthy examples include litigation by the University of Rochester against G.D. Searle & Co. (Pharmacia) for the alleged infringement of the University’s patent on the Cox-2 enzyme and John Madey’s claim against Duke University concerning the alleged infringement of his patents