Patents and Eminent Domain

mrbill writes "Interesting take on the Eminent Domain case now before the Supreme Court. Could the same logic behind using Eminent Domain to take real property be used to take a Patent? Apparently some states are contemplating taking drug company patents to force lower drug prices." From the article: "Patents are the key to huge drug-company profits. The industry will fight vociferously to protect them. In West Virginia, where the issue came up last summer, industry lawyers warned a legislative advisory council away from proposing such action on patents, claiming it would be unconstitutional. "

Comments

For those slashdotters unaware of the SCOTUS case

[Raul654]

The summary above refers to Susette Kelo v. City of New London. The city is attempting to use eminent domain to take some land from people, and sell it to a private developer to develop. (I emphasize private because the case hinges on that) Cnn had a good write up here

Re: Unconstitutional?

[pablonyc]

Actually, Article I, Sec. 8 of the Constitution gives Congress authority to grant patents and copyrights. However, it is not specifically denied to the states - it is up to Congress, under the Supremacy Clause, to decide whether to allow states to regulate the same areas. For example, states had independent copyright laws until the 1970s, until Congress took that power away. With that said, it's a meaningless issue here, as the Federal government has in fact blocked parallel state rulemaking regarding patents.

However, the doctrine of sovereign immunity and the 11th amendment make it hard to prosecute state governments for patent or copyright infringement. So a statewide agency could just start making patented drugs, and it would be hard to stope them