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.
I think the authors’ concerns are
well-founded, but more information is always helpful. The authors’ also note that “the Association
of University Technology Managers recently announced that it was re-examining
its policies that had recommended against transferring rights to non-practicing
entities.” Would anyone like to expand
on any anecdotal evidence about monetization in the bio-pharmaceutical
industry?
In examining why “trolling” may
occur in the bio-pharmaceutical industry, the article also explains:
There is much truth to the conventional wisdom. Biotechnology
and pharmaceutical research does involve a greater investment of time, money
and expertise. This results in fewer patents, fewer targets, and a longer lead
time for problems to emerge. In addition, developments in product type and
patent rules affect the opportunities for patent demands. Biotech and
pharmaceutical products tend to have fewer components, and patents in the field
tend to be less broad than the software and business method patents that
proliferate in the technology industry.
However, the conventional wisdom suffers from three
weaknesses. First, it ignores the role that regulation plays in making some
pharmaceutical patents harder to invent around, thus raising the potential
hold-up costs of what patents are available to monetize. Second, it assumes a
classical model of patent bargaining, rather than the strategic bargaining and
suit filing adopted by modern monetizers. Third, it assumes that monetizers
will confine themselves to a relatively narrow set of technological targets;
while high-tech may be low-hanging fruit, the proliferation and increasing
sophistication of monetizers means that other industries are likely to be
targeted in the near future.
The article goes on to discuss the
specific patents held by five universities that could be used by “trolls.” (Oh, my.
Now I am losing sleep over this blog post about the article.) And, on to reform efforts and data, IP
Finance reader Dr. Reuven K. Mouallem from Israel has sent me links to two of
his papers on “patent trolls.” One paper
discusses the issue of “patent trolls” from the patent quality perspective and
the second paper examines statistics/procedures from the USPTO, JPO and EPO
that evidence quality problems.
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