Posts Tagged: "universities"

Higher education is undergoing a seismic transformation as a result of a once-in-a-century pandemic. Administrators and faculty around the world are quickly overhauling how they provide instruction to students while trying to keep them on the path to graduation. With change in the academic space already underway, now is the time for colleges and universities to reinvent their innovation ecosystems and implement the intellectual property (IP) education methods and policies that students need to thrive in our knowledge economy.

If the objective is to beat this virus as fast as possible it simply isn’t helpful to talk about the compulsory licensing of drugs that don’t yet exist and the patents that can’t possibly be issued by the United States Patent and Trademark Office for at least the next two to three years. The COVID-19 crisis will be long since over by the time the first patent issues relating to anything specifically related to COVID-19. Yet somehow it is viewed as productive to demand compulsory licensing of vaccines, treatments and cures for COVID-19 that do not exist?

Litigation finance in the university context is thus particularly valuable. Even for smaller matters, litigation finance shifts spend off the university’s balance sheet, allowing it to put its own capital to use in its primary endeavors: Education and innovation. For larger matters, litigation finance shifts risk from the university—which, despite its diverse technology portfolio, may have only a small number of claims with attractive litigation prospects—to an entity with a much larger book of diversified risk across uncorrelated claimants.

The biggest complaint about federal labs is it’s too hard to complete deals. Many federal labs must run pending agreements through byzantine departmental procedures. Companies wonder what’s taking so long and are surprised when negotiated points come back altered… One reason why universities outperform the labs is that many academic licensing officers come from the private sector. They understand the pressures companies are under to complete agreements.

A few months ago, a judge ordered Apple to pay the University of Wisconsin $506 million for infringing one of its tech patents. Last year, Carnegie-Mellon University won $750 million in a patent infringement lawsuit against Marvell Technology Group. With such big-money patent cases in the news, you might think that owning a patent can create a major windfall of profit for universities. While this has proven true for a handful of institutions, the truth is that most universities actually make little or no money from licensing the inventions they produce.  

On Thursday, October 12th, a pair of letters addressed to the bipartisan leadership of the Senate Judiciary Committee were delivered in an attempt to inform Senators on that committee of various issues in play regarding the recent patent deal between multinational pharmaceutical firm Allergan and the sovereign St. Regis Mohawk Tribe. The two groups sending the letters represent stakeholders in the U.S. patent system coming from very different backgrounds who realize that there are fundamental flaws in the system created by inter partes review (IPR) proceedings which are carried out at the Patent Trial and Appeal Board (PTAB).

The United States Patent Trial and Appeal Board (“PTAB”) recently dismissed another inter partes review (“IPR”) based on an assertion of 11th Amendment sovereign immunity.  This decision demonstrates the willingness of the PTAB to permit State agencies (such as public universities, medical schools, and research centers) to effectively shield their patents from the threat of post-grant proceedings at the PTAB.  While this is certainly a benefit to entities that can take advantage of sovereign immunity, it does not completely insulate government-held patents from any validity challenge, as more traditional approaches of invalidating patents still remain viable avenues for those accused of infringement.

Senator Chuck Grassley (R-IA) added language to the fee-shifting provisions in the PATENT Act that would offer an economic hardship exception to fee shifting for “an institution of higher education.” The reason that Iowa State and the University of Iowa find themselves on the outside looking in is because of the way they have structured their patent ownership and licensing efforts. As is rather common, Iowa State and the University of Iowa place ownership of patents outside the institution and in the hands of a Research Foundation, which is a separate entity altogether.

It is truly a shame that so many have bought into the demonization of patent owners without any critical thought. In order to believe the narrative emanating from certain Silicon Valley giants you would have to believe the existence of helpless multinational, multi-billion dollar companies on their knees and wholly incapable of defending themselves against despicable independent inventors, diabolical universities, and monstrous scientific researchers. After all, looking to find a cure for cancer, or trying to figure out how to clean up the environment, or invent the next great kitchen gadget that will be the darling of QVC by definition makes someone vile, immoral, corrupt and down right sinful! A real devil in disguise!

There are a variety of problems with this paper, the conclusions reached and the methodology. Perhaps the largest problem is that Professors Feldman and Lemley rely on subjective evidence rather than volumes of objective evidence that contradict the self-serving responses from those who are licensing rights they are already infringing. What else would you suspect from a homogenous subset of individuals who collectively don’t like the patent system very much? Collective bias seems a far more likely answer as to why there is “near unanimity,” as the Professors claim. Even so, how is it possible that any group could ever achieve near unanimity about anything? The fact that there was near unanimity demands one to question whether there is a bias or flaw in the survey, yet no such inquiry seems to have been made.