In early 2006, the Wisconsin Legislature passed 2005 Wisconsin Act 335, creating the Wisconsin Aerospace Authority (WAA). Unique to this particular act is the enumeration of the power to acquire intellectual property by the WAA. While granting them the power to acquire intellectual property is not unique, there is an interesting problem with that acquisition: the Act does not conform to the Parker Doctrine, and thus allows the WAA to be subject to antitrust litigation in its intellectual property acquisition under the proper circumstances. Specifically, the Act allows the WAA to enter into exclusive contracts that allow the WAA to acquire intellectual property rights in patents and copyrights. If entering into these contracts are found to be in violation of antitrust law, the contracts could be challenged, and state contract law would be preempted by federal patent or copyright law. If federal law preempts state law and the contractual relationship is a violation of antitrust law, the specific provisions of the Act that allow for intellectual property rights acquisition could be held void. The key factor is the broad language in the Act and the limitless authority it grants to the WAA in acquiring intellectual property. While thecause of such broad language is left to speculation, the remedy to prevent such an action can lie in other states’ aerospace authority statutes, such as the Alaska Aerospace Corporation and the New Mexico Regional Spaceport District. This Comment will address the broad language of the Wisconsin statute that allows for intellectual property acquisition, focusing particularly on patents, the history of the antitrust law applied to state-owned entities, the circumstances needed for intellectual property acquisition to violate antitrust law, and the potential remedies. The problem with addressing these issues is that the issues are unique and rarely occur. While state-owned entities are no stranger to intellectual property acquisition, my research was unable to locate any state-owned entity acquiring any intellectual property through anticompetitive behavior. Furthermore, my research uncovered only one article into potential state antitrust behavior in acquiring intellectual property, albeit, on a federal level. And while trade secret misappropriation has resulted in patent applications, which have subsequently been denied, the very notion of state antitrust behavior seems contrary to the nature of private research, invention, and patent application imbued into the America Invents Act. This Comment will first address the Wisconsin laws and the history of antitrust laws applied to state-owned entities. Next, part two will address how Wisconsin could violate those antitrust laws in their independent research and invention for a potential patent, and how that violation could preempt state common law. Part three will then address potential remedies, including, but not limited to patent sharing, broad oversight, and revision of those laws. Part four suggests revisions to the current laws to prevent state antitrust activity.
Nicholas J. Thibodeau,
Wisconsin Patent Acquisition in the Final Frontier: Creating a Void,
21 Marq. Intellectual Property L. Rev. 89
Available at: https://scholarship.law.marquette.edu/iplr/vol21/iss1/7