Patent trolls in Biotech

January 7, 2019

To say that Biotechnology has been on a very fast growth is an understatement.

As Biotechnology becomes more popular, more accessible, more promising and more often the subject of mainstream headlines or even Sci-Fi stories, more people come up with ideas...even broad abstract ideas that may or may not be  possible for the current state of our knowledge or technology, yet "ideas" nevertheless.

Ideas are great. Ideas fuel innovation. Innovation fuels our economy and improves our well-being and health. 

 

If one has a valid and novel idea, one should be able to have its idea protected while one works on such idea...and that's what a patent is for.

 

A patent is an official government document, "a writing securing for a term of years the right to exclude others from making, using, or selling an invention" (Merriam-Webster).

Theoretically, that protection enables an inventor to publicly talk about his/her idea without the fear of having his/her idea stolen or being scooped (" a scientist's worst nightmare"). Speaking of... most scientists care more about publications than patents...and that may be a good thing.

 

But while some devote their lives to advancing knowledge, curing diseases, bettering the world...and maybe just making a name for themselves, the noble way, some are just after the money. 

They are pejoratively labeled "patent trolls".

 

"In Scandinavian mythology, trolls are creatures who [...] live in caves [...] and steal children" (Collins English dictionnary).

Imagine someone lurking in the shadows, waiting to eat the fruits of your labor and strip you of everything you've worked for. That may be a fair comparison. If you are not familiar with the concept, the first minute and a half of the video above will give you a rough idea of the extent of the problem.

 

Because the "patent troll" problem has destroyed companies and is a real threat to innovation, some victims have shared ways they have dealt with the issue. Drew Curtis compares them to terrorists on "how to deal with patent trolls".

 

But...what does that have to do with Biotech? you may ask... well, according to this linked Nature article, "'Patent trolls' target biotechnology firms".

 

The video below will give you an insight and a better understanding of how patents are attributed and why it can be a problem. 

 

Back in 2012, I attended a patent attorney-led practical course on "how to write your own patent". One of the rules was: "be as broad as possible", in order to limit ways people can circumvent your patent.

 

Companies that focus on software innovation are a prime target of "opportunistic patent litigation" because software patents can be very broad and unspecific.

The same could be said of some Biotech ideas. Imagine someone patenting genetic engineering, after the fact. It's not likely and somewhat of an exaggeration but if you look up some actual Biology-related patents, their merit can be questionable because they sometimes cover ideas and techniques that are very broad or were clearly common knowledge and common practice in the scientific community, long before the patent application.

So, trolls aside, the fear may be legitimate for Biotech companies when broad patents are awarded, as demonstrated by the Classen Immunotherapy case (other report on the case here).

 

Patents are an integral part of innovation. Now the question is: should you spend the time and/or money filing a patent or not?

Some feel strongly one way or the other.

Patents are definitely an asset and can be leveraged to estimate the value of your company.

But sometimes the better question is :

"Do you have the money to defend your patent?"

 

As the French say: "L'union fait la force.", meaning: being part of a team can make you stronger. Any endeavor can benefit from good partnerships.

Although large institutions can sometimes seem slow and inefficient, they can also have the experience and be better equipped to deal with certain intellectual property issues. 

Here is one suggestion (and I welcome and encourage your comments on it):

If you have a genuinely innovative idea that can solve a significant problem that enough people actually care about, partnering with an academic institution, a government lab or a larger company could help you in the long run. Sometimes you need to share the credit because you need to share the effort... but be crystal clear about  IP issues and be sure to document all your interactions regarding your idea. Trust is not a substitute for prudence.

 

If you are serious about developing your product, filing for a provisional patent is actually a good idea and after that it's a good time to look for partners. The filing process is actually not complicated. This fun kid shows you how to do it in 20 minutes in this video.

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January 7, 2019

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