On Patents · 6 May, 12:21 PM
Yesterday, I was having a conversation over lunch about patents, specifically, software patents. It seems to me that the chief problem with software patents is the problem of implementation, which is exhibited at its worst in the form of patent trolls, but often just amounts to someone with a lame implementation of a broad patent suing a more successful competitor; for example, Eolas vs. Microsoft, or MecrExchange vs. eBay. So I started to wonder out loud why you never hear of patent trolls in the pharmaceutical industry. Here’s an industry that lives and dies by patents. You’d think that you could do the equivalent of a software patent troll: claim “a mechanism by which a drug is delivered to the body and thereby causes a reduction in cholesterol” or some overly broad claim. Someone suggested that maybe Pharma patents are granted for specific compounds, which may be true, but that proves my point: if that’s the case, pharmaceutical companies are required to patent specific implementations of ideas.
Today, Brad Feld posted another in his series on patent reform, this time on “defensive” patents. I remember having this exact conversation a couple years ago; I wasn’t given a bonus to write a patent application but I was asked to write one, and the rationale was defensive – at the time there was a company that appeared to be a patent troll taking out all kinds of patents in the space I was working in, so it seemed sensible from a defensive standpoint. Then someone reminded me that while a patent might be defensive to the current owners of the company, any new owners wouldn’t necessarily be so altruistic. If you wrote the agreement strongly enough to prohibit “successors and assigns” from using the patent “offensively”, your employer would now be saddled with a big liability; I’d say as big as not having employees sign an intellectual property waiver. And in any case, that doesn’t cover a company that’s bought out of receivership. Patents themselves aren’t granted for any specific purpose, so any promise made by a company that subsequently files Chapter 7 is completely irrelevant.
— Gordon Weakliem
Comment
Commenting is closed for this article.