Patent Law Practice Center

The rise of efficient infringement, a problem for universities

Recent overhauls to America’s patent laws have forced universities and other patent owners into a corner when asserting their rights. Last October, The New York Times reported on the rise of “efficient infringement” which has increased in the wake of the 2011 America Invents Act. Tools created by that legislation to challenge patent validity, such as through the Patent Trial and Appeal Board (PTAB), allow major companies with huge amounts of financial and legal resources to ignore reasonable licensing inquiries and to shift the burden onto the patent owner by challenging the patent’s validity.

Many say that hostility toward patents in the courts has reached new heights, with numerous cutting-edge innovations dealing with software, biotechnology, medical diagnostics and personalized medicine all being routinely found patent ineligible. Rather than take patent licenses, or even engage in negotiations, many companies have calculated that they are better served by ignoring patent rights and openly infringing. These efficient infringers dare universities and other patent owners to sue.

As the New York Times article notes, however, there has been a troubling pattern of associating universities with so-called “patent trolls”on the basis that, like other non-practicing entities (NPEs), universities don’t manufacture products but license their technologies to others. But universities are not patent trolls. In fact, the primary goal of the university is to make sure that as much research done at the university is commercialized as possible.

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When “Patent Trolls” ARE Innovators

The term “patent troll” conjures up all kinds of images and ideas, but what is a patent troll?  Unfortunately, there is really no universally accepted definition of what a patent troll is, although if you are getting sued for patent infringement by a non-practicing entity, you probably think you are being sued by a patent troll.

My view has long been that companies that complain about patent trolls don’t really want them to go away. Patent trolls are extremely valuable to these big tech companies because they are an identifiable and unsympathetic villain, even if they cannot really be defined in any satisfying way. The image of a patent troll can be paraded about Capitol Hill whenever patent reform is being pushed, or even in front of the Supreme Court, which increasingly seems to be interested in taking them into consideration when reaching decisions, despite them not being involved in the case.

I personally hate the term patent troll, which may come as a shock to many because I use it all the time. I use it to attempt to crystalize the issue, because the term “patent troll” has over time become synonymous with “non-practicing entity,” and not all non-practicing entities are bad. In fact, many are good actors that diligently work against long odds to research and develop new technologies, treatments, drugs and therapies we all want.

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Defending Bayh-Dole Under Attack

By: Gene Quinn (IPWatchdog.com)

On February 28, 2013, I spoke at the annual meeting of the Association of University Technology Managers (AUTM), which was held in San Antonio, Texas. I spoke there about what universities can do to fend off the challenges to Bayh-Dole. As crazy as it seems, there are those who are advocating a change to what has been described by The Economist as the most successful piece of domestic legislation since the end of World War II.

Prior to the enactment of Bayh-Dole in 1980, it was virtually impossible to license University technology. In fact, a grand total of zero… that is 0… drugs developed with university funding from the federal government had been commercialized. Now, the pharmaceutical industry is enormously involved with universities and university research and dozens upon dozens of drugs have been commercialized. University basic science is the very foundation of many of the most exciting drugs, which provide tremendous cures and life-saving treatments. So dialing back the clock to when government-funded research was locked up so tight that it didn’t do anyone any good is simply ridiculous.

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Exclusive Interview With Senator Birch Bayh

The following was sent in by Gene Quinn, of IPWatchdog and Practice Center Contributor.

On October 12, 2010, I had the honor of interviewing retired United States Senator Birch Bayh at his office at Venable LLP.  Senator Bayh was the primary architect of the landmark Bayh-Dole Act, which gave Universities the ability to own the patent rights to the inventions made.  The 30th Anniversary of passage in Congress is rapidly approaching, which provided the backdrop for our discussion.

Those familiar with Bayh-Dole and government funded research in generaly know that the United States has for years funded research at Universities.  Prior to the enactment of Bayh-Dole, however,  it was virtually impossible for private enterprises to license the rights to patents obtained through federally funded research. Thus, society was funding the research and the innovations were simply being withheld from the public due to the existence of too much red tape. Bayh-Dole changed everything, and has been described as the “the most inspired piece of legislation to be enacted in America” since the end of World War II. (more…)

The Role for Open Source in Paradigm Shifting Innovation

Written by Gene Quinn (of IPWatchdog and Practice Center Contributor)

My writings about open source and software patents have earned me a special place in the hearts and minds of those who harbor irrational hatred of software patents. But I am here to tell you that open source is not all bad and, in fact, should be embraced. Open source, however, is hardly something new to the patent community. Perhaps it is better to say that where open source software is heading is nothing new, and it will come as a shock to those who hate patents, but patents will be completely necessary in order for the open source community to continue to advance and live up to its full potential.

Of course, many in the open source community simply do not want patents and would rather they go away altogether. They choose to believe that “innovation” is synonymous with “independent creation,” which is just straight up intellectually dishonest. In order to innovate one must create a new device or a new process. Simply stated, copying the work of others is not innovative; and neither is ignoring what others have done and independently creating something with careless disregard of whether it is new or used. (more…)