What Goes Around, Comes Around: How Indian Tribes Can Profit in the Aftermath of Seminole Tribe and Florida Prepaid

INTRODUCTION I. PATENT LAW II. EXPERIMENTAL USE EXCEPTION III. STATE SOVEREIGN IMMUNITY IV. TRIBAL SOVEREIGNTY V. TRIBAL SOVEREIGN IMMUNITY VI. DISCUSSION CONCLUSION INTRODUCTION The Bureau of Indian Affairs, a federal agency, directly services approximately 1.5 million American Indians who reside on approximately fifty-six million acres of reservation land across the United States. (1) Of this number, in 2001, 403,714 were employed and nearly one-third of this number lived below the poverty line. (2) The average health, life expectancy, and education of Indians also lag behind the rest of America. The infant mortality rate is markedly higher than the rest of the population at 8.3 deaths per thousand as apposed to 6.9 for the rest of the population of the United States. (3) The death rate due to intentional self harm for Indians is 2.6% contrasted with 1.3% for Whites and 0.7% for Blacks. (4) The Indian's average life expectancy of 73.5 years is still lower than the rest of the nation. (5) With regard to the educational status of Indians living on reservations, only 11% of Indians have completed undergraduate or professional degrees, whereas 24.4% of the United States population has completed one or both degrees. (6) Interestingly, the numbers above show some improvement in Indian life in the near past. For example, the number of Indians who are enrolled in universities or colleges increased 26% between 1990 and 2000. (7) Further, the infant mortality rate in 1955 was 62.7 per 1000 births (whereas it was 8.3 as of 2000). (8) It is clear, however, from this incomplete listing of statistics, that many Indians still live in dire circumstances. All is not lost for American Indian tribes. This article presents one possible solution to the issue of Indian poverty: the creation of sovereign chartered research groups that would be shielded by tribal sovereign immunity. In reaching this conclusion, this paper will begin with an overview of patent law, state sovereign immunity, tribal sovereign status, and tribal sovereign immunity. Finally, it will end with a discussion of how tribes can take advantage of their sovereign status to start research groups that could, potentially, bring greater investment potential and wealth into the tribes. I. PATENT LAW The body of patent law finds its origins in the U.S. Constitution. Specifically, Article I, section 8, clause 8, grants Congress the power to enact legislation that would promote the advancement of science and the arts by granting limited monopolies on their respective works. (9) The exact wording is as follows: The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries[.] (10) The most current major legislative work intended to protect the discoveries of inventors was embodied in 1952 as the Patent Act. It laid out the vast majority of what is, today, considered to be patent law. It exists in Title 35 of the U.S. Code and is implemented in Title 37 of the Code of Federal Regulations. The main section that is the most relevant to this discussion is 35 U.S.C. [section] 271. This section relates to the definition of infringement and the partial text is reproduced here: (a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. (b) Whoever actively induces infringement of a patent shall be liable as an infringer. (c) Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer. …