UCLA Law Review Volume 53, Issue 1


Application of the Government License Defense to Federally Funded Nanotechnology Research: The Case for a Limited Patent Compulsory Licensing Regime

Nanotechnology’s potential impact on worldwide industries has nations around the world investing billions of dollars for research in order to capture a part of the projected trillion dollar market for nanotechnology products in 2010. The current rush to patent nanotechnologies may lead to an overcrowded nanotechnology patent thicket that could deter critical innovation and continued product development in the United States. At this early stage of nanotechnology’s life cycle, increasing numbers of broad and potentially overlapping patents are being issued-while few nonexclusive licenses are being offered. Furthermore, the lack of significant case law provides little guidance on proper nanotechnology patent scope and validity, while the decline of legal defenses such as experimental use leaves innovators exposed to potential infringement liability for even the most fundamental of scientific research studies. In this Comment, the author proposes that the U.S. government exercises the full extent of its rights under the twenty-five year old Bayh-Dole Act and develop the government license defense to create a limited patent compulsory licensing regime for the fruits of federally funded research. The author argues that recipients of the billions of dollars in federal nanotechnology research funds should provide broad, nonexclusive licenses to the privatized patent rights they obtain as a result of public funding. Ultimately, a well-formulated government license defense, which assesses the extent to which an “infringing” act against a federally funded patent falls along a spectrum of fair use, would provide a means for overcoming the innovation-impeding effects of absolute exclusion rights.

A Blow to Public Investing: Reforming the System of Private Equity Fund Disclosures

Private equity funds have managed for years to squeeze into a unique loophole in federal securities law. Because the funds generally solicit only a small number of wealthy, sophisticated investors, they are exempt from the disclosures normally mandated by federal securities laws. As a result, the funds have kept their investment information undisclosed, privately pursuing specialized investment strategies that yield high returns and allow investors to diversify outside the mainstream. Due to recent lawsuits filed under state Freedom of Information Acts (FOIAs), many of the wealthiest investors in private equity funds, including public universities and state pension funds, must disclose information about their investments. Information about the funds in which they invest consequently is being cast into the public light for the first time. The reaction from the private equity community has been primarily negative, with some of the more prestigious funds going so far as to ban public institutional investors altogether. This Comment explains how private equity firms are generally exempt from disclosing information about their investments under federal securities law. It then describes how state public disclosure laws intended to benefit the public may instead result in the exclusion of public institutions from the most lucrative private equity funds as the funds fight to keep their investment information and strategies private. Finally, the Comment considers statutory, regulatory, and political solutions to this problem, and it proposes a uniform state law that would balance the privacy of private equity firms with the public’s desire to shed light on investment returns.

Why Congress May Not "Overrule" the Dormant Commerce Clause

For over a century, the Supreme Court has acknowledged and upheld Congress’s power to overrule the Court’s Dormant Commerce Clause decisions. In this Article, Professor Williams challenges the constitutionality of that practice, arguing that there is no more reason to allow Congress to overrule the Court’s Dormant Commerce Clause decisions than its Equal Protection or First Amendment decisions. The Dormant Commerce Clause is not based on a statutory presumption of Congress’s regulatory intent to leave certain fields free of state regulation, nor is it a limitation that exists merely for Congress’s benefit, which therefore may be waived by Congress. Rather, the Dormant Commerce Clause is a constitutional limitation on state power that protects the ability of individuals to engage in commerce free of unduly burdensome or protectionist state regulation. At the same time, although Congress may not license state action that would otherwise violate the Dormant Commerce Clause, it still may cooperate with the states in ways such as incorporating otherwise valid state laws into federal regulatory programs.

The Security Constitution

Homeland security is a critical component of the War on Terrorism. In our federal system of government, who is responsible for securing the homeland? The U.S. Congress has made available to states and cities some funding for overtime and equipment, but it has not assumed responsibility for covering all of the security costs incurred locally. While deploying some federal personnel for domestic security, the Executive branch relies largely on state and local officials for the necessary manpower. Meanwhile, governors and mayors complain about the unfairness of asking them to shoulder the burden of preventing terrorist attacks that would affect the entire nation, pointing to the risks of refusing states and cities the resources they need. Yet residents of states and cities less vulnerable to attack are reluctant to contribute to the high costs of security efforts necessary in places like New York City and Washington, D.C. Ratified in an age of insecurity, the U.S. Constitution provides clear guidance on the issue of responsibility for homeland security. The Protection Clause of Article IV requires the national government to safeguard states and their cities from attack, either by providing the necessary security or by paying the costs of security measures implemented locally. Although today largely forgotten, the Clause once maintained a prominent role in guiding federal efforts in fortifying coastal towns, securing the frontiers, and responding to foreign invasions and domestic insurrections. Examining how the Protection Clause governed early conceptions of security efforts-unlocks a security constitution designed expressly to address many of the logistical concerns now raised by the War on Terrorism. Finally, the U.S. Supreme Court’s anticommandeering doctrine, based on the Tenth Amendment, should not limit the national government’s ability to deploy modern state and local security personnel, like law enforcement, for counterterrorism work. Historically, the Protection Clause has allowed and even compelled the federal deployment of state militia-who, under the Constitution’s several Militia Clauses, could be (and often were) deployed by the federal government for security purposes. Indeed, the Constitution specifically provides for and encourages this type of commandeering as a way to protect citizens from the national military taking over towns and cities.

Roper v. Simmons and Our Constitution in International Equipoise

In Roper v. Simmons, the Court unequivocally affirms the use of comparative constitutionalism to interpret the Eighth Amendment. It does not, however, provide an obvious theoretical basis to justify the practice. This Article searches for a theory to explain the comparativism in Roper using the theories advanced in the author’s previous scholarship. It concludes that of the colorable candidates, natural law constitutionalism is the most plausible explanation, with the attendant problems associated therewith. The Article concludes with an analysis of the possible ramifications of the Court’s comparative approach, suggesting that it may be pursuing a Constitution that is in international equipoise, with international values distributed liberally throughout our jurisprudence to ensure foreign and domestic equilibrium.