Still Patently Unconstitutional: A Reply to Professor Nard

Abstract

In Defense of Geographic Disparity (also forthcoming, 88 MINN. L. REV., Fall 2003), is Professor Craig Nard's response to Professor Bagley's article Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World, 87 MINN. L. REV. 679, 680-682 (2003). In this essay, Professor Bagley addresses Professor Nard's contention that the geographic limitation on prior art can be justified by the incentives it provides for U.S. pharmaceutical development which may enhance public welfare. By refocusing on the provision's constitutional deficiencies, expanding on the myriad costs associated with the provision, and discussing the dangers of maintaining this double standard that is out of step with the realities of both modern and traditional societies, Professor Bagley reaffirms her conclusion that elimination of the geographical limitation is a necessity in this small, small world.