This Article explores two recent Supreme Court cases—Association of Molecular Pathology v. Myriad Genetics, Inc. and Golan v. Holder—and other intellectual property litigation in the context of the standing doctrine and the public interest.
These cases present significant public policy questions, but the adversarial nature of the courts makes them ill-equipped to consider the multiple public interests and multiple stakeholder perspectives. As a result, adjudication of these cases in the courts results in propertization of the intellectual property interests, the exclusion of non-parties from the formation of policy, and the exhaustion of any further policy debate after the court decision.
This Article discusses these effects and proposes a public-comment mechanism to mitigate the negative consequences.
Russell W. Jacobs,
In Privity With the Public Domain: The Standing Doctrine, the Public Interest, and Intellectual Property,
30 Santa Clara High Tech. L.J. 415
Available at: http://digitalcommons.law.scu.edu/chtlj/vol30/iss3/3