Plugging the Leak in § 1498: Coercing the United States into Notifying Patent Owners of Government Use
PDF · Steven Rushing · Jun-6-2012 · 45 VAND. J. TRANSNAT'L L 879 (2012)
When the United States uses a patent for public, noncommercial purposes, it is required under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to provide notification to the patent owner. However, the United States has never implemented legislation to conform with its obligation and is therefore in violation of TRIPS. This Note argues that by permitting obvious and smaller violations—such as lack of notification—to fester, the United States has left the door open for other members of the World Trade Organization (WTO) to weaken the United States’ overall trade policy. Members could likely accomplish this goal by first bringing a dispute over obvious U.S. violations to the WTO in order to build a growing sentiment against the United States. If the United States wishes to stay ahead of such risks and continue using current trade policies, it should amend its laws to correct smaller violations such as the lack of notification, and thus prevent possible attacks from rival members.