Abstract

http://ssrn.com/abstract=1599893
 


 



Patent Cover-Up


Brenda M. Simon


Thomas Jefferson School of Law; Stanford Law School - Center for Law & the Biosciences

May 8, 2010

Houston Law Review, Vol. 47, No. 5, p. 1299, 2011
Thomas Jefferson School of Law Research Paper No. 1599893

Abstract:     
Companies are using patents to hide problems. Patents are supposed to encourage innovation and the dissemination of information, but sometimes they do just the opposite. Using the threat of litigation or restrictive licensing practices, patent holders have hindered rigorous evaluation of their patented technology. This Article examines patent cover-up in the areas of identification chips, genetic testing, and agricultural biotechnology.

I discuss how much control patent holders should be able to exercise over information related to their technology. Information resulting from independent quality assessment should be beyond the patent holder’s reach, considering its importance for privacy, health, and security. Unless courts interpret existing patent doctrines broadly enough to permit quality assessment, I propose that Congress or the courts should adopt a defense to infringement to allow for it.

The proposed exception would allow for the use of a patented invention for quality assessment. This includes activities necessary to identify and analyze limitations and weaknesses of the patented invention. Because the quality assessment exception does not protect alternatives that could supplant demand for the patented technology, it is less likely to undercut incentives to innovate. An exception permitting quality assessment strikes a reasonable balance between the normal exploitation of the patent and the legitimate interests of the public.

Number of Pages in PDF File: 58

Keywords: patent, defense, exception, innovation, testing, information, privacy, genetic testing, agricultural biotechnology, misuse, exhaustion

JEL Classification: K19, K29, K39, O3, O31, O32, O34

Accepted Paper Series


Download This Paper

Date posted: May 8, 2010 ; Last revised: February 1, 2014

Suggested Citation

Simon, Brenda M., Patent Cover-Up (May 8, 2010). Houston Law Review, Vol. 47, No. 5, p. 1299, 2011; Thomas Jefferson School of Law Research Paper No. 1599893. Available at SSRN: http://ssrn.com/abstract=1599893

Contact Information

Brenda M. Simon (Contact Author)
Thomas Jefferson School of Law ( email )
1155 Island Ave
San Diego, CA 92101
United States
619-961-4307 (Phone)

Stanford Law School - Center for Law & the Biosciences ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Feedback to SSRN


Paper statistics
Abstract Views: 1,090
Downloads: 211
Download Rank: 83,546
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.485 seconds