Wisconsin Patent Acquisition in the Final Frontier: Creating a Void

Marquette Intellectual Property Law Review Volume 21 | Issue 1 Article 7 Wisconsin Patent Acquisition in the Final Frontier: Creating a Void Nicholas J. Thibodeau Follow this and additional works at: https://scholarship.law.marquette.edu/iplr Part of the Air and Space Law Commons, Conflict of Laws Commons, Contracts Commons, Government Contracts Commons, Intellectual Property Law Commons, and the Legislation Commons Repository Citation Nicholas J. Thibodeau, Wisconsin Patent Acquisition in the Final Frontier: Creating a Void, 21 Marq. Intellectual Property L. Rev. 89 (2017). Available at: https://scholarship.law.marquette.edu/iplr/vol21/iss1/7 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Intellectual Property Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact . 05 THIBODEAU.FINAL.FORMATTED (DO NOT DELETE) 4/27/2018 10:47 AM Wisconsin Patent Acquisition in the Final Frontier: Creating a Void I. INTRODUCTION .................................................................................... 89 II. CONSTRUING THE LAW ...................................................................... 90 A. The Powers of the Wisconsin Aerospace Authority ............... 91 B. The Principles of Antitrust Law ............................................. 92 C. Preemption of State Contract Law ......................................... 92 III. WISCONSIN AEROSPACE AUTHORITY PREEMPTION ........................ 94 A. Wisconsin Aerospace Authority Violates Antitrust Laws ...... 94 B. The WAA Would Be Preempted ............................................ 95 C. Combining to a Void ............................................................... 96 D. Wisconsin Intellectual Property Acquisition .......................... 98 IV. RESOLUTION ................................................................................... 100 I. INTRODUCTION In early 2006, the Wisconsin Legislature passed 2005 Wisconsin Act 335, creating the Wisconsin Aerospace Authority (WAA).1 Unique to this particular act is the enumeration of the power to acquire intellectual property by the WAA.2 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 the 1. 2. S.B. 352, 2005 Leg., Reg. Sess. (Wis. 2006). See WIS. STAT § 114.62(6) (2015–16). 05 THIBODEAU.FINAL.FORMATTED (DO NOT DELETE) 90 MARQ. INTELL. PROP. L. REV. 4/27/2018 10:47 AM [Vol. 21:1 cause 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.3 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,4 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.5 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.6 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. II. CONSTRUING THE LAW Imagine this scenario: the WAA enters into an exclusive contract with the Astronautics Corporation of America (ACA), based in Milwaukee, to launch rockets from Spaceport Sheboygan to test new equipment the ACA is developing for the new Orion spacecraft. This new equipment, if proven 3. See ALASKA STAT. § 26.27 (2014); see also N.M. STAT. ANN. § 5–16 (2010). 4. See About Us, BERKELEY IPIRA, http://ipira.berkeley.edu/about-us [https://perma.cc/5RK 4-LEG6] (last visited Mar. 28, 2016). At the University of Wisconsin, all patents are held by the Wisconsin Alumni Research Foundation, a private, nonprofit company that handles all patents and licensing. See About Us, WARF, http://www.warf.org/about-us/about-us.cmsx [https://perma.cc/TU P9-VK47] (last visited Mar. 28, 2016). However, the University of Wisconsin can and does maintain other forms of intellectual property, such as copyrights, trademarks, and trade secrets. See W, Registration No. 4,591,526. 5. See infra note 40. 6. See 35 U.S.C. § 119 (2012). 05 THIBODEAU.FINAL.FORMATTED (DO NOT DELETE) 2017] 4/27/2018 10:47 AM WIS. PATENT ACQUISITION IN FINAL FRONTIER 91 through these tests, will allow for better aeronautic measurements than GPS, which, if mass produced, could eventually be put into every new manufactured airplane as well. One provision in this contract allows the WAA a partial ownership in any patents acquired by testing this equipment, since the WAA was integral in its creation, as it manages the only spaceport in the entire Midwest that is licensed for the launching of spacecraft. However, since the WAA has a monopoly over Midwestern space launches (and (...truncated)