Promoting Public Health Through State Sovereign Immunity

University of Pennsylvania Journal of Law & Innovation 2021

18 Pages Posted: 18 May 2021

See all articles by Sapna Kumar

Sapna Kumar

University of Houston Law Center

Date Written: May 14, 2021

Abstract

During the COVID-19 outbreak, the United States experienced widespread shortages of patented drugs and goods. But although states negotiated with foreign governments to obtain needed medical equipment, they were seemingly powerless to obtain or produce their own supply of scarce drugs. This Essay proposes an unorthodox solution to drug shortages during public health emergencies: states could disregard the Patent Act and directly produce or import needed patented drugs. The doctrine of state sovereign immunity shields states from having to pay damages when they violate federal law, including patent law. Moreover, courts and agencies are generally unwilling to award injunctions or other prospective relief if it disserves the public interest. State action is admittedly not a perfect solution to patent-related drug shortages and comes with a variety of costs and risks, including retaliation from the U.S. Food & Drug Administration. But at minimum, it could serve as a means for pressuring the federal government and pharmaceutical companies to work to provide drugs to the public.

Keywords: state sovereign immunity, public health, patents

Suggested Citation

Kumar, Sapna, Promoting Public Health Through State Sovereign Immunity (May 14, 2021). University of Pennsylvania Journal of Law & Innovation 2021, Available at SSRN: https://ssrn.com/abstract=3846434 or http://dx.doi.org/10.2139/ssrn.3846434

Sapna Kumar (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

HOME PAGE: http://www.law.uh.edu/faculty/main.asp?PID=4715

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