Patent Trolling - Why Bio & Pharmaceuticals Are at Risk

Robin Feldman, University of California, Hastings College of the Law
W. Nicholson Price II, University of Michigan Law School

Work published when author not on Michigan Law faculty.


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 modern debates, however, the biopharmaceutical industry goes conspicuously unmentioned. Although the biopharmaceutical industry is paradigmatically centered on patents, conventional wisdom holds that it is 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 sciences patent holdings of 5 major universities to determine if these might be attractive to monetizers. This search was deliberately light, rather than exhaustive. Nevertheless, we identified dozens of patents that could be deployed against current industries. These include patents on the 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.