1 10 Cl. Ct. 304 (1986), rev'd, 814 F.2d 624 (Fed. Cir. 1987), action dismissed per stipulation No. 730-85C (Cl. Ct. Dec. 4, 1987).

2 The National Cancer Institute is a division of the National Institutes of Health of the Department of Health and Human Services (HHS).

3 Institut Pasteur, 10 Cl. Ct. at 308.

4 Id.; Complaint at 11, Institut Pasteur, 10 Cl. Ct. 304 (1986) (No. 730-85C).

5 An Agence France Presse article described the financial interests involved in this controversy:

“In the background of the rivalry between the researchers of the two countries are the enormous commercial and financial stakes of… [the AIDS virus] discovery, which represents … a fortune evaluated at a hundred million dollars, notably for the blood test kits.” Agence France Presse, La guerre des brevets est ouverte entre la France et les Etats-Unis, (Dec. 13, 1985) (translated by Howard L. Singer). This article also stated that the U.S. had the “home field advantage” in the AIDS legal dispute because the case was before an American court. The article concluded: “Cooperation or open war. The American courts, once again, are going to have to decide, as they did in the case of the Concorde … .” Id.

6 Institut Pasteur, 10 Cl. Ct. at 308. In a separate action the French contested the American patent before the U.S. Patent and Trademark Office. See id. at 306-07; Norman, AIDS Patent Negotiations Break Down, 232 Science 819 (1986)Google Scholar. This action was settled as part of the overall settlement between the French and American governments. Settlement Agreement on AIDS Patent Dispute, Mar. 30, 1987, Institut Pasteur-United States Department of Health & Human Services-National Technical Information Service [hereinafter Settlement Agreement] (copies of the non-confidential sections of this agreement may be obtained from the Office of Public Affairs of the Freedom of Information Act/Privacy Act Division, U.S. Department of Health & Human Services); see also Jones, AIDS Test By French Recognized, N.Y. Times, Nov. 28, 1987, § 1 at 30, col. 1.

7 See Barre-Sinoussi, Chermann, Rey, Nugeyre, Chamaret, Gruest, Dauguet, Axler-Blin, Vezinet-Brun, Rouzioux, Rozenbaum, & Montagnier, Isolation of a T-Lymphotropic Retrovirus from a Patient at Risk for Acquired Immune Deficiency Syndrome (AIDS), 220 Science 868 (1983)Google Scholar [hereinafter Barre-Sinoussi].

8 Institut Pasteur, 10 Cl. Ct. at 306 (discussing Patent Application No. 558,109).

9 Contract Disputes Act, 41 U.S.C. § 601 (1982).

10 Institut Pasteur, 10 Cl. Ct. at 311.

11 Id.

12 Institut Pasteur, 814 F.2d at 626.

13 Id. at 628.

14 U.S. and France Reach Agreement on AIDS Dispute, 33 Pat. Trademark & Copyright J. (BNA) No. 824, at 590 (Apr. 2, 1987); Altman, U.S. and France End Rift on AIDS, N.Y. Times, Apr. 1, 1987, at Al, col. 4. For the text of the joint announcement by Reagan and Chirac, see France-United States AIDS Research: Remarks on a Patent Rights Agreement, 23 Weekly Comp. Pres. Doc. 324 (Apr. 6, 1987).

15 See Settlement Agreement, supra note 6, at 7, 11-12, 24-25; see also Altman, supra note 14, at A18. As a result of the agreement, Pasteur and the United States submitted to the U.S. Claims Court a Stipulation of Dismissal by which the parties agreed that Institut Pasteur v. United States would be dismissed with prejudice and that the parties would bear their own costs. Institut Pasteur, No. 730-85C (CI. Ct. Dec. 4, 1987) (action dismissed per stipulation).

16 Pneumocystis Pneumonia - Los Angeles, Morbidity & Mortality Weekly Rep., June 5, 1981, at 250; see also AIDS: A Growing Threat, Time, Aug. 12, 1985, at 40, 41. The French-American controversy over the discovery of the AIDS virus was followed in the U.S. by the New York Times and Science, and in France by Le Monde and La Recherche. This author's account of the factual background relies heavily upon articles from these four sources as well as the statements of facts from the Claims Court and Court of Appeals decisions of the case.

17 AIDS: A Growing Threat, supra note 16, at 41-42.

18 Institut Pasteur, 10 Cl. Ct. at 305; Norman, AIDS Virology: A Battle on Many Fronts, 230 Science 518, 519 (1985)Google Scholar.

19 Institut Pasteur, 10 Cl. Ct. at 305. The general international scientific community, however, was not convinced that this new virus was the cause of AIDS. Montagnier and his colleagues had taken the virus sample from only one patient; thus, it was not clear whether the virus was a cause of the disease or an opportunistic infection. Norman, supra note 18, at 520.

Norman, supra note 18, at 518-19.

21 Institut Pasteur, 10 Cl. Ct. at 305; Norman, supra note 18, at 518.

22 Barre-Sinoussi, supra note 7.

23 A reagent is “[a] substance used to detect the presence of another substance.” C. Thomas, Taber's Encyclopedic Medical Dictionary 1457 (1985).

24 Institut Pasteur, 10 Cl. Ct. at 305-06.

25 The letter read as follows:

Id.

26 Id. at 305.

27 The agreement read as follows:

Virus LAV1 produced by human T-lymphocytes n. degrees 1-232 deposited on July 15th, 1983 at the C.N.C.M. [Collection National de Cattures de Microorganismes].

The virus LAV1 will be available subject to acceptance of the three following conditions:

• 1) The virus will be used by the recipient himself, exclusively, and only for the following research purposes (fill in):

  • a) biological; b) immunological and c) nucleic acid studies.

• 2) It will not be used for any industrial purpose without the prior written consent of the Director of the Pasteur Institute.

• 3) The recipient agrees not to disseminate the virus in any form (to companies or other scientists) without the prior written authorization of the Director of the Pasteur Institute. The recipient is also informed that the virus LAV1 may constitute a potential biohazard.

Institut Pasteur, 814 F.2d at 625.

28 Norman, AIDS Priority Fight Goes to Court, 231 Science 11, 11 (1986)Google Scholar.

29 Institut Pasteur, 10 Cl. Ct. at 306 (discussing Patent Application No. 83.24.800 in the United Kingdom).

30 Id.; Complaint at 4, Institut Pasteur, 10 Cl. Ct. 304 (1986) (No. 730-85C).

31 Institut Pasteur, 10 Cl. Ct. at 306 (discussing Patent Application No. 558,109).

32 Although they did not realize it at the time, the problem was due to the fact that the virus killed the cells it infected. The Pasteur group circumvented this problem by continually propagating the virus on fresh cells. See Norman, supra note 28, at 11.

33 Id.

34 Characterization is “[t]he description or attributing of distinguished traits.” Stedman's Medical Dictionary 259 (4th ed. 1982).

35 Pasteur Institute Files Suit Against U. S. Over AIDS Research and Royalties, 31 Pat. Trademark & Copyright J. (BNA) No. 760, at 151 (Dec. 19, 1985) [hereinafter Pasteur Institute Files Suit]; Institut Pasteur, 10 Cl. Ct. at 306 (discussing Patent Application Nos. 602,945 and 602,949). On the day that the U.S. filed its patent applications for the AIDS blood test kit, Margaret Heckler, Secretary of HHS, called a news conference. Altman, U.S. Report Names Virus That May Cause AIDS, N.Y. Times, Apr. 24, 1984, at Cl, col. 1. With Gallo present, she announced the discovery of the AIDS virus: “Today we add another miracle to the long honor roll of American medicine and science.” A Viral Competition Over AIDS, N.Y. Times, Apr. 26, 1984, at A22, col. 1. Gallo stated at the news conference that he had in fact isolated the virus a year earlier, but had been hesitant to publish the findings until he could mass produce and purify it, given that these were prerequisite steps towards developing a blood test. Carey, The Rivalry to Defeat AIDS, U.S. News & World Report, Jan. 13, 1986, at 68. Gallo's results were published the following month in four consecutive articles in the May 4, 1984 issue of Science: Popovic, Sarngadharan, Read, & Gallo, Detection, Isolation, and Continuous Production of Cytopathic Retroviruses (HTLV-III) from Patients with AIDS and Pre-AIDS, 224 Science 497 (1984)Google Scholar; Gallo, Salahuddin, Popovic, Shearer, Kaplan, Haynes, Palker, Redfield, Oleske, Safai, White, Foster, & Markham, Frequent Detection and Isolation of Cytopathic Retroviruses (HTLV-III) from Patients with AIDS and at Risk for AIDS, 224 Science 500 (1984)Google Scholar; Schupbach, Popovic, Gilden, Gonda, Sarngadharan, & Gallo, Serological Analysis of a Subgroup of Human T-Lympholropic Retroviruses (HTLVIII) Associated with AIDS, 224 Science 503 (1984)Google Scholar; Sarngadharan, Popovic, Bruch, Schupbach, & Gallo, Antibodies Reactive with Human T-Lympholropic Retroviruses (HTLV-III) in the Serum of Patients with AIDS, 224 Science 506 (1984)Google Scholar.

36 Institut Pasteur, 10 Cl. Ct. at 306 (discussing Patent No. 4,520,113: Serological Detection of Antibodies to HTLV-III in Sera of Patients with AIDS and Pre-AIDS Conditions). The U.S. patent application took 13 months to be approved although most patents usually take 22 months from time of application. Carey, supra note 35, at 68. The U.S. Patent Office denied that it favored the U.S. patent applications at the expense of the earlier Pasteur application. It claimed that Pasteur had the misfortune of having their patent application processed by an extremely busy office whereas the U.S. had the good fortune of having its applications assigned to an office with a lighter work load. See Nau, Querelle de Test, Le Monde, Aug. 14, 1985, at 8, col. 1; see also Escoffier-Lambiotte, L'Institut Pasteur porte plainte contre L'Institut national de la sante Americain, Le Monde, Dec. 14, 1985, at 12, col. 3.

37 Institut Pasteur, 10 Cl. Ct. at 307.

38 Norman, supra note 28, at 11-12; see abo Norman, Patent Dispute Divides AIDS Researchers, 230 Science 640, 642 (1985)Google Scholar.

39 The letter read as follows:

We can assure you that consideration will be thorough and fair to all concerned. Letter from C. McClain Haddow, chief of staff, HHS to Dr. Raymond Dedonder, director, Institut Pasteur (Aug. 20, 1985), noted in Institut Pasteur, 10 Cl. Ct. at 307.

40 The documents included prior correspondence with Gallo, copies of Pasteur's patent application in the United Kingdom and the United States, the published proceedings of the September 15, 1983 Cold Spring Harbor conference and a copy of the September 23, 1983 receipt signed by Dr. Popovic. Institut Pasteur, 10 Cl. Ct. at 307. The receipt was described by Dedonder as a “contract dated September 23, 1983 between Dr. Popovic (R. Gallo's laboratory) and L. Montagnier relative with the receipt by Dr. Popovic of the LAV's strain isolated by L. Montagnier and co-workers and described in Science May 20, 1983.” Id. (statement of Dr. Raymond Dedonder). On August 26, 1985, Dedonder sent Haddow a legal memorandum which asserted that “the Gallo et al patent can be considered as not valid.” Letter from Dr. Raymond Dedonder to C. McClain Haddow (Aug. 26, 1985), noted in Institut Pasteur, 10 Cl. Ct. at 307. The memorandum also stated that “the Institut Pasteur can establish a prima facie case of breach of contract in that the retrovirus given to Dr. Popovic or one derived therefrom to the best of Institut Pasteur's knowledge, was used in contravention of the terms of the letter agreement.” Id. The memorandum furthermore suggested that the collection of royalties by the U.S. constituted “unjust enrichment.” Id.

41 The letter read as follows:

42 Institut Pasteur, 10 Cl. Ct. at 308.

43 Id.; Norman, supra note 28, at 12.

44 The complaint stated, for example, that the virus described in the U.S. patent “is, or is substantially identical to, the LAV strain first isolated by Pasteur … and provided to NCI by Pasteur under promises of confidentiality and noncommercialization.” Complaint at 7-8, Institut Pasteur, 10 Cl. Ct. 304 (1986) (No. 730-85C); see also Institut Pasteur, 814 F.2d at 626; Norman, supra note 28, at 12. In the April 18, 1986 issue of Science, Gallo and his colleagues announced a surprising correction of one of Gallo's landmark May 1984 Science articles in which he had related his discovery of the virus HTLV-III. The letter tended to support Pasteur's charge that LAC and HTLV-III are identical. Gallo declared that a series of three photographs intending to show HTLV-III presented in reality the LAV sent by Montagnier. He explained that the error took place at the time of publication when a choice was made among photographs, but the error was not realized until now. Gilden, Gonda, Sarngadharan, Popovic, & Gallo, HTLV-III Legend Corrections, 232 Science 307 (1986)Google Scholar; see also Norman, A New Twist in AIDS Patent Fight, 232 Science 308 (1986)Google Scholar; Coup de theatre dans la querelle sur le virus du SWA, 17 La Recherche 800 (1986). Montagnier told La Recherche that Gallo's admission proved that Gallo knew from the beginning that LAV and HTLV-III are identical. Montagnier also asserted that Gallo's admission totally supported the position of Pasteur in Institut Pasteur v. United States. Id. at 800.

45 Institut Pasteur, 10 Cl. Ct. at 308; Complaint at 11-12, Institut Pasteur, 10 Cl. Ct. 304 (1986) (No. 730-85C); see also Pasteur Institute Files Suit, supra note 35, at 151.

46 AIDS Dispute Dismissed on Jurisdictional Grounds, 35 Pat. Trademark & Copyright J. (BNA) No. 789, at 277 (July 24, 1986).

47 Institut Pasteur, 10 Cl. Ct. at 309.

48 Defendant's Motion for Summary Judgment, Institut Pasteur, 10 Cl. Ct. 304 (1986) (No. 730-85C); Defendant's Motion to Dismiss, Institut Pasteur, 10 Cl. Ct. 304 (1986) (No. 730-85C); Plaintiff's Memorandum of Law in Response to Order of the Court Dated May 23, 1986, Institut Pasteur, 10 Cl. Ct. 304 (1986) (No. 730-85C).

49 Institut Pasteur, 10 Cl. Ct. at 308.

50 Id.

51 28 U.S.C. § 1491(a)(1) (1982).

52 “The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id. (emphasis added).

53 Institut Pasteur, 10 Cl. Ct. at 308.

54 Id.

55 Id.

56 41 U.S.C. § 602(a) (1982); see Institut Pasteur, 10 Cl. Ct. at 309.

57 Institut Pasteur, 10 Cl. Ct. at 309.

58 Id. The court relied upon Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947), for support of this rule. See also Operational Manuals, Inc. v. United States, 205 Ct. Cl. 854 (1974); Molony & Rubien Constr. Co. v. United States, 214 Ct. Cl. 809 (1977). In Federal Crop Ins. Corp., a corporate agency of the Department of Agriculture insured a crop of reseeded wheat with a clause incorporating regulations published in the Federal Register. Those regulations forbade such insurance. The Court held that the Federal Register gave notice, and accordingly, that the contract was unlawful and incapable of supporting a suit. Justice Frankfurter, the author of the majority opinion, concluded that “anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority… . And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.” Federal Crop Ins. Corp., 332 U.S. at 384. Relying upon H.F. Allen Orchards v. United States, 4 Cl. Ct. 601, aff'd, 749 F.2d 1571 (Fed. Cir. 1984), Judge Merow also cited a related rule that the authority required must be viewed in the context of the contractual reach claimed by plaintiff. Institut Pasteur, 10 Cl. Ct. at 309. In Orchards, the plaintiffs, members of an irrigation district in the state of Washington, sought damages from the United States based on the United States Bureau of Reclamation's asserted breach of a contractual obligation to inform the plaintiffs accurately of the total amount of water expected to be supplied to them from a federal water project. The court held that even if it could be implied that the Bureau of Reclamation had promised members of the irrigation district that it would make accurate forecasts of the amount of water to be made available, that promise is not binding on the government if the plaintiff does not demonstrate that any officer who had authority to obligate the United States to the agreement had done so. “It is ‘a time honored principle that the Federal Government is not bound by its agent acting beyond his authority … . ‘ “ Orchards, 4 Cl. Ct. at 607 (quoting National Bank of South Carolina v. United States, 233 Ct. Cl. 573, 577, 621 F.2d 1109, 1111 (1980)).

59 Fischinger stated: “Neither Dr. Gallo nor Dr. Mikulas Popovic of his laboratory have been delegated the authority to enter into any collaborative arrangement which would incur financial obligations on behalf of the United States… . No individual scientist in a NCI laboratory, including Dr. Gallo and Dr. Popovic, has the authority to enter into any agreement to bind the United States with respect to patents and related rights including the disposition of royalties arising out of collaborative arrangements entered into by NCI or its scientists.” Institut Pasteur, 10 Cl. Ct. at 309 (declaration of Dr. Peter J. Fischinger).

60 Id. He added that Dr. Popovic was working at NCI via a fellowship and, consequently, was not a regular employee of the United States.

61 Id.

62 Id.

63 Id.

64 Id.

65 Id. Pasteur had argued that Lebanon Chemical Corp. v. United States, 5 Cl. Ct. 812 (1984), was directly on point. In that case, an Environmental Protection Agency official, who was not a contracting officer, was held to have executed a binding settlement agreement. The court stated that “[t]he government relies on the absence of the person's authority to act as a contracting officer in the formal sense, specifically the authority to bind the government in an agreement to pay for the procurement of goods, services, or property.” Id. at 815. The court ruled that the official had actual authority to enter into the settlement agreement involved, much as government attorneys have authority to bind the United States in litigation matters. Id. However, Judge Merow concluded that even in Lebanon, “the same principle of required actual authority is present” given that “[s]ettlements which are beyond the authority of a government agent are not binding upon the United States.” Institul Pasteur, 10 Cl. Ct. at 310.

66 Institut Pasteur, 10 Cl. Ct. at 310.

67 Two provisions closely resembled the September 23, 1983 receipt form. One stated that work would be on a collaborative basis. The other stated that the cell line “will not be used for commercial purposes. A U.S. Government (National Cancer Institute) patent is in effect.” Id.

68 Id.

69 Id.

70 Id. at 310-11.

71 41 U.S.C. § 602(a)(1) (1982).

72 Id.

73 Institul Pasteur, 10 Cl. Ct. at 311.

74 Thus, under section 605(a) of the Contract Disputes Act (CDA), “[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 605(a) (1982). Pursuant to section 605(c)(2), “[a] contracting officer shall, within sixty days of receipt of a submitted certified claim over $50,000 — (A) issue a decision; or (B) notify the contractor of the time within which a decision will be issued.” 41 U.S.C. § 605(c)(2) (1982). Section 605(c)(5) provides that “[a]ny failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the contracting officer denying the claim and will authorize the commencement of the appeal or suit on the claim … . “ 41 U.S.C. § 605(c)(5) (1982).

75 Prefab Products, Inc. v. United States, 9 Cl. Ct. 786 (1986).

76 Id. at 790.

77 Id. at 787.

78 id. at 789.

79 Id. The court stated that “the filing of a certified claim with the contracting officer is a jurisdictional prerequisite to the filing of an action on the claim in the Claims Court.” Id. The court added that “the linchpin for appealing claims under the Contract Disputes Act is the contracting officer's ‘decision.’ No appeal … to this court under sec. 609, may be taken without such a ‘decision.’ “ Id. at 790 (citing Paragon Energy Corp. v. United States, 227 Ct. Cl. 176, 177, 645 F.2d 966, 967 (1981)).

80 See Paragon Energy Corp., 227 Ct. Cl. at 183-84, 645 F.2d at 971; Arlington Alliance, Ltd. v. United States, 231 Ct. Cl. 347, 357-58, 685 F.2d 1353, 1359 (1982); W.H. Moseley Co. v. United States, 230 Ct. Cl. 405, 407, 677 F.2d 850, 852, cert, denied, 459 U.S. 836 (1982); Paul E. Lehman, Inc. v. United States, 230 Ct. Cl. 11, 14, 673 F.2d 352, 354 (1982); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985); W.M. Schlosser Co. v. United States, 705 F.2d 1336, 1338 (Fed. Cir. 1983); Skelly & Loy v. United States, 231 Ct. Cl. 370, 372, 685 F.2d414, 416 (1982).

81 Institul Pasteur, 10 Cl. Ct. at 311.

82 Id.

83 767 F.2d 875 (Fed. Cir. 1985).

84 Id. at 877.

85 Id.

86 Id.

87 Id. at 878.

88 Id.

89 41 U.S.C. § 602(a)(1) (1982).

90 Institut Pasteur, 10 Cl. Ct. at 311.

91 Id.

92 Id.

93 Id. Judge Merow relied on the Code of Federal Regulations for a definition of the crucial term of procurement: “ ‘Procurement’ means the acquisition (and directly related matters), from non-Federal sources, of personal property and nonpersonal services (including construction) by such means as purchasing, renting, leasing, contracting, or bartering, but not by seizure, condemnation, donation, or requisition.” 41 C.F.R. § 1.1-209 (1983).

94 Institut Pasteur, 10 Cl. Ct. at 311.

95 Id.

96 Institut Pasteur, 814 F.2d at 626.

97 See Minnesota Power & Light Co. v. United States, 782 F.2d 167, 169 (Fed. Cir. 1986).

98 Institut Pasteur, 814 F.2d at 626. The appellate briefs submitted by Pasteur and the United States also examined the statutory language of the CDA, its legislative history and the case law. Pasteur's major contentions in its brief were that the CDA must be limited to procurement contracts and that the CDA could not have been intended to apply to collaborative research agreements. Brief for Plaintiff-Appellant, Institut Pasteur v. United States, 814 F.2d 624 (Fed. Cir. 1987) (No. 86-1541). The major contentions offered by the United States in its reply brief were that the CDA must be construed broadly and that it essentially applies to any contract by which the United States obtains property other than real property in being. Brief for Appellee, Institut Pasteur v. United States, 814 F.2d 624 (Fed. Cir. 1987) (No. 86-1541). Pasteur also submitted a reply brief in which it maintained that the Government's answering brief had abandoned the reasoning of the Claims Court — that the contracts sued upon by Pasteur involved procurement. Reply Brief for Plaintiff-Appellant, Institut Pasteur v. United States, 814 F.2d 624 (Fed. Cir. 1987) (No. 86-1541).

99 713 F.2d 728, 730 (Fed. Cir. 1983).

100 796 F.2d 400 (Fed. Cir. 1986).

101 Id. at 406 (quoting Church of Holy Trinity v. United States, 143 U.S. 457, 459 (1892)).

102 Institut Pasteur, 814 F.2d at 627.

103 Id.; see Pub. L. No. 91-129, § 1, 83 Stat. 269 (1969), amended by Pub. L. No. 92-47, 85 Stat. 102 (1971).

104 Institut Pasteur, 814 F.2d at 627; see also S. Rep. No. 1118, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S. Code Conc. & Admin. News 5235, 5238.

105 Institut Pasteur, 814 F.2d at 627.

106 Id.

107 Id.; Coastal Corp. v. United States, 713 F.2d 728 (Fed. Cir. 1983).

108 Coastal, 713 F.2d at 729.

109 Id. at 730.

110 Institut Pasteur, 814 F.2d at 627.

111 A contract is: “[A] binding legal relation basically obligating the seller to furnish personal property or nonpersonal services (including construction) and the buyer to pay therefor. It includes all types of commitments which obligate the Government to an expenditure of funds “ 41 C.F.R. § 1.1-208 (1983).

112 See supra note 93 (definition of procurement).

113 Institut Pasteur, 814 F.2d at 628.

114 Id.

115 Id.

116 Id.

117 Id.

118 Id.

119 Id.

120 Id.

121 Id.

122 Id.

123 Id.

124 See Barnes, AIDS Case Dismissed on Legal Technicality, 233 Science 414 (1986)Google Scholar.

125 Altman, Despite Wide AIDS Cooperation, a Feud Holds Center Stage, N.Y. Times, July 1, 1986, at C3, col. 1. An indication of the manner by which this legal dispute has augmented international scientific competition occurred when a team of French scientists held a news conference in October 1985 to announce that they had successfully treated AIDS patients with the drug cyclosporine. The patients died soon thereafter and the French team was criticized for its premature news conference. One of the doctors on the team later stated that the French Minister of Health, Georgina Dufoix, pressured the team to hold the news conference after the team had sought Government support for their research. According to the doctor, the Health Minister told the team that “[t]he Americans stole credit for the discovery of the virus, and they are not going to steal credit for discovery of a treatment.” Id.

126 See supra notes 14, 15 and accompanying text. For an examination of the interaction of proprietary rights in inventions with traditional scientific norms, see Eisenberg, Proprietary Rights and the Norms of Science in Biotechnology Research, 97 Yale L J . 177, 228 (1987)Google Scholar (stating that “[t]his dramatic conclusion to the conflict indicates the extraordinary degree of public interest in AIDS research … . ”).

127 See supra note 5 (indicating how a French journalist was concerned by the fact that this international dispute was going to be settled in an American judicial forum). For a discussion of the background and analytical framework of international commercial arbitration, see Vries, De International Commercial Arbitration: A Contractual Substitute for National Courts, 57 Tul. L. Rev. 42 (1982)Google Scholar.