Harmonizing the Exclusionary Rights of Patents with Compulsory Licensing

The Constitution gives Congress the power to "promote the Progress of Science and useful Arts." The patent system embodies this power, but does it fulfill its essential purpose? This Note explores the scope of the exclusive rights of patents, arguing that in many circumstances the exclusive right is so strong as to actually hinder progress. It explores the court's attempts to temper exclusive rights with compulsory licensing. Building upon the concurring opinion of Justice Kennedy in eBay v. MercExchange, this Note advocates a patent system that will allow access to stagnant patents sooner. The proposed system starts with an initial exclusive patent period that is much shorter, and then includes renewable periods of exclusivity, which may only be maintained if the patent meets certain exclusivity requirements. If the patent does not qualify for exclusivity the patent holder must license the patent to would be infringers. Because the outcome of any licensing agreement at this point is a license, whether court mandated or not, the parties have greater incentive to license on their own. The proposed system is compared to other proposals and other similar systems around the world and even finds parallels in our own patent system. The Note then applies the proposed framework, using as hypothetical case studies the pharmaceutical and patent licensing industries. An underlying balance exists to any fundamental change in the patent system, but ultimately the Note concludes that the proposed change would do further to promote progress as the mandate states with little administrative cost to most patentees but vast strategic gains to society at large. The underlying theme of the Note, however, regards the patent system itself. Perhaps the proposed framework falls short, but the key is thinking about whether the patent system does what it was set out to do: promote progress