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Patent Trolling — Why Bio & Pharmaceuticals Are at Risk

40 Pages Posted: 15 Feb 2014 Last revised: 3 Apr 2016

Robin Feldman

University of California Hastings College of the Law

W. Nicholson Price II

University of Michigan Law School

Date Written: February 14, 2014

Abstract

Patent trolls — also known variously as non-practicing entities, patent assertion entities, and patent monetizers — are a top priority on legislative and regulatory reform agendas. In the modern debates, however, the biopharmaceutical industry goes conspicuously unmentioned. Although biopharmaceuticals are paradigmatically centered on patents, conventional wisdom holds that biopharmaceuticals are largely unthreatened by trolls. This article shows that the conventional wisdom is wrong, both theoretically and descriptively. In particular, the article presents a ground-breaking study of the life science holdings of 5 major universities to determine if these might be attractive to monetizers.

This was deliberately a light, rather than an exhaustive, search. Nevertheless, we identified dozens of patents that could be deployed against current industries. These include patents on active ingredients of drugs; methods of treatment; screening methods to identify new drugs; manufacturing methods; dosage forms; and ancillary technologies that could be deployed in a “peddler’s bag” approach. The article describes the types of patents we found, including an example of each type.

In deciding whether to undertake this analysis, we lost sleep over whether the potential for harm outweighed the potential benefit. If reform efforts are not undertaken, our work could do no more than provide a handy road map for those who would follow. However, with scattered anecdotal evidence suggesting that monetization is moving into biopharmaceuticals, life sciences trolling is predictable and in its infancy. If reforms are implemented before the problem proliferates, legislators and regulators could cabin the activity before it becomes deeply entrenched and too much harm occurs.

Keywords: nonpracticing entities, patent trolls, patent assertion entities, pharmaceuticals, patents, biotechnology

JEL Classification: L65, O34

Suggested Citation

Feldman, Robin and Price, W. Nicholson, Patent Trolling — Why Bio & Pharmaceuticals Are at Risk (February 14, 2014). 17 Stan. Tech. L. Rev. 773, 2014; UC Hastings Research Paper No. 93. Available at SSRN: https://ssrn.com/abstract=2395987 or http://dx.doi.org/10.2139/ssrn.2395987

Robin Feldman

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

William Nicholson Price II (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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