Impediments to Innovation: Implications of National Health Care Legislation for the Intellectual Property Community
Engage, Volume 11, Issue 2
August 31, 2010David L. Applegate, Arthur Gollwitzer III
The move toward a national health care plan in the United States has taken three major steps: passage of the Social Security Act under President Franklin D. Roosevelt in 1935; passage of Medicare and Medicaid as amendments to the Social Security Act under President Lyndon B. Johnson in 1965; and passage of the “Patient Protection and Affordable Care Act” under President Barack H. Obama in 2010. Although contemporaneous litigation may stop or slow its implementation, and implementing regulations have not yet been drawn up or been published, it is safe to say that any legislation that regulates an estimated one-sixth of the national economy—and a segment that is particularly sensitive to and dependent upon innovation—will necessarily affect innovation and intellectual property rights. The general merits (or, indeed, the constitutionality) of a national health care scheme are not the focus of this paper. Instead, we offer observations about the likely effect of this recently-passed legislation on the most significant driver of American economic growth in the twenty-first century, innovation and corresponding intellectual property rights...