Vol. 124 No. 6 Drug companies will often have insufficient incentives to undertake clinical testing on drugs ineligible for patent protection. The Orphan Drug Act combats this problem by providing a limited term of exclusivity to companies willing to shepherd a drug through FDA approval. This strategy is a form of intellectual property protection that might be applicable in many contexts beyond drugs, but the literature has not previously addressed the design and potential scope of such protection
Vol. 123 No. 4 This Article assesses intellectual property law’s emerging role as a modern form of sumptuary law. The Article observes that we have begun to rely on certain areas of intellectual property law to provide us with the means to preserve our conventional system of consumption-based social distinction, our sumptuary code, in the face of incipient social and technological conditions that threaten the viability of this code. Through sumptuary intellectual property law, we seek in particular to suppress the revolutionary social and cultural implications of our increasingly powerful copying technology. Sumptuary intellectual property law is thus taking shape as the socially and culturally reactionary antithesis of the more familiar technologically progressive side of intellectual property law. The Article identifies the conditions that are bringing about this peculiar juncture of intellectual property law and sumptuary law and evidences this juncture in various evolving intellectual property law doctrines.
