Patent Cover-Up

58 Pages Posted: 8 May 2010 Last revised: 1 Feb 2014

See all articles by Brenda M. Simon

Brenda M. Simon

California Western School of Law; University of California, San Diego (UCSD)

Date Written: May 8, 2010


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.

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

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

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:

Brenda M. Simon (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

University of California, San Diego (UCSD)

9500 Gilman Drive
Mail Code 0502
La Jolla, CA 92093-0112
United States

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