from the isn't-this-a-problem? dept
In practice, this means state governments -- including things like research universities -- are able to infringe on patents in the public interest, claiming sovereign immunity in state courts against such claims. We've pointed out in the past how hypocritical it is that state universities frequently use such sovereign immunity claims to avoid lawsuits, while at the same time being some of the most aggressive patent trolls in going after others (with the University of California being a prime example). However, it is the law of the land and in the Constitution that sovereign immunity on things like patents cannot be abridged.
Yet, as the video above notes, the TPP appears to get rid of that, and would open up states, at the very least, to these international corporate sovereignty tribunals (also known as Investor State Dispute Settlement, or ISDS, tribunals).
In other words, the USTR may single-handedly undermine the Constitution's 11th Amendment, overturning Supreme Court precedent on the subject in a deal negotiated entirely in secret, with patent holders (who hate the sovereign immunity protections) as the key advisors. That's not how our government is supposed to work.
The threat here isn't just theoretical. Beyond the various patent cases that universities and state governments have been able to toss out via sovereign immunity, the video mentions the infamous lawsuit against Georgia State University over its e-reserves program. While that case has focused on the fair use questions involved, it's entirely possible that Georgia State could also claim sovereign immunity. And since the plaintiffs suing Georgia State are "foreign" publishers (including Oxford University Press and Cambridge Press), under the ISDS system, rather than going to a US court that would recognize sovereign immunity, they could just go to an ISDS tribunal which wouldn't care about sovereign immunity.
Do we really want the USTR completely wiping out part of our Constitution (which has helped enable university research) via a secretive trade agreement with no public accountability?