Patent Misuse Research Articles

Patent Abuse in the Context of International Law

Misuse of intellectual property rights is not uncommon, and often occurs particularly between developed and developing countries. This has a great negative impact on the progress of developing countries, global scientific and technological development and economic efficiency. The author hopes to strengthen the attention to this problem and effectively regulate the abusive behavior through the study of this issue. The definition of intellectual property abuse is vague, and this paper provides a preliminary understanding by summarizing the four basic constituent elements. Focusing on patent trolls, the paper analyzes the embodiment of intellectual property abusive behaviors and coping strategies. This paper analyzes the Wireless Planet v. Huawei case related to standard essential patents against the background of the TRIPS Agreement, FRAND principle, and the combination of trade barriers and breakthroughs to the traditional jurisdictional system of patent rights. In addition, this paper compares the intellectual property laws of China and the United States, and China and Japan, and analyzes the antagonism between developed home and developing home in this field.

Content and Methods of Balancing the Interests of Antitrust Law in Regulating the Abuse of Standard-Essential Patents

Content and Methods of Balancing the Interests of Antitrust Law in Regulating the Abuse of Standard-Essential Patents

CLÁUSULA DE NÃO CONCORRÊNCIA NOS CONTRATOS EMPRESARIAIS: UMA ANÁLISE SOBRE A INTERVENÇÃO ESTATAL DIANTE DA APARENTE COLISÃO ENTRE OS PRINCÍPIOS DA LIVRE CONCORRÊNCIA E DA AUTONOMIA PRIVADA

This article seeks to analyze and discuss state intervention in the face of the apparent collision between the principles of private autonomy and free competition, as a direct result of the application of a very useful clause for business activity: the non-compete clause or non-compete clause . To this end, bibliographic and qualitative research were used. The non-compete clause is a true expression of the freedom that entrepreneurs have to establish, via contract, the most favorable terms for their activities. However, it appears that the agreement of the aforementioned clause by business people suffers unjustified intervention from the State, which, with the aim of protecting free competition, ends up interfering with private autonomy and preventing the free establishment of contractual terms beneficial to the enterprise and even to society. In this sense, an important discussion arises about the real impacts that non-compete clauses can cause to free competition and the need or not for state intervention with a view to modifying such clauses. Answers to such problems will only be achieved through analysis of the factors inherent to the functioning of the market, which, in turn, will prevent patent abuses in the private sphere without compromising free competition.

From the abuse of Community (IP) law to the abuse of (intellectual) property rights: time for an EU patent misuse doctrine?

From the abuse of Community (IP) law to the abuse of (intellectual) property rights: time for an EU patent misuse doctrine?

A Study on the ‘Patent Misuse’ as a Patent System that Encourages Innovation - Focusing on Discussion and Cases in US -

A Study on the ‘Patent Misuse’ as a Patent System that Encourages Innovation - Focusing on Discussion and Cases in US -

PEMBATASAN TERHADAP PERSAINGAN UNTUK MEMBENTUK PASAR DALAM KASUS STANDARD ESSENTIAL PATENT (SEP) (PERBANDINGAN HUKUM PERSAINGAN USAHA DI INDONESIA DAN UNI EROPA)

The role of patents is complex when dealing with the problem of technological interoperability in cases where patented technology becomes standard. In such cases, a balance is needed between the protection of the interests of the inventor, i.e. the standard essential patent (SEP) holder, and of users who need the technology to enter the market. There is a susceptibility to restrictions on competition to create markets (competition for the market). Market dominance can be created by the adoption of SEP holder technology as a standard and hence, a key for other business actors to enter the market. With the potential for the formation of a dominant position in the relevant market, the competition law intervention is required when patent abuse occurs, as it appears typical in the pharmaceutical and information technology industries. The normative research examines how competition law in the European Union deals with SEP cases in comparison to Indonesian competition law.

A Study on the Policy Solutions to Prevent Abuse of Patents : Focusing on Patent Ambush

A Study on the Policy Solutions to Prevent Abuse of Patents : Focusing on Patent Ambush

Patenting Essentials: Pharmaceutical Boon or Bluff?

Lack of availability of medicines can be attributed to various reasons, but the most important and essential one is the high prices of these drugs. The exorbitant prices of drugs are due to the Intellectual Property protection granted to such drugs. It is a huge responsibility for the governments of various countries to keep the prices of medicines low so that the commoners are benefitted. This responsibility is much more on the government of an emerging country. Many times, it has been seen that governments come under immense pressure exerted by the developed & the industrialized countries and also the worldwide medicinal industry. The TRIPS agreement offers the standards required to be fulfilled for grant of a patent, including patents for medicines. There are many safety standards set out by TRIPS for the prevention of patent abuse. But it is of the utmost requirement that there is clarity as to how such standards can be used to prevent patents from creating a hurdle in access to medicines, especially the essential ones. This paper focuses on clarifying this aspect by studying various instruments, the Doha declaration which prioritized public health over IP, the lacunas in the Doha declaration which prevents it from solving all problems, the failure of the World Trade Organization to make sure that generic medicines are exported to the under-developed or the emerging countries, etc.

Inter Partes Review Estoppel: The Patent Law Tug-of-War

Inter partes review estoppel has violated the principles of traditional res judicata since its inception. For the first several years of its life, IPR estoppel served to preserve a petitioner’s ability to harass patent owners and repetitively attempt to invalidate patents. Following SAS in 2018, IPR estoppel began to reverse course. The courts that once were allowing patent owner abuse are now limiting it with a broad application of IPR estoppel. However, this broad application of IPR estoppel is a soft claim preclusion that allows many exceptions behind the principles of res judicata. Furthermore, the PTAB allows petitioners to file numerous IPR petitions and does not enforce estoppel until a final written decision is issued to which the petitioner is a real party in interest. This practice likewise allows the harassment of patent owners and violates the principles of res judicata. To resolve the inter partes review estoppel problems, Congress must reintroduce the principles of res judicata with exceptions only where patent litigation absolutely requires it. Such an analysis leads to the conclusion that by enacting only the petitioner standing requirement and the estoppel provisions of the STRONGER Patents Act of 2019, IPR estoppel would achieve a balance equitable to patent owners and petitioners alike. These two provisions do well to support the principles of res judicata, grant adequate leeway where patent litigation requires it, yet still provide claim preclusion strong enough to avoid abuse. The doctrine of res judicata does not need reinventing for 21st century patent litigation—it merely needs reintegration.

The High Cost of Insulin in the United States: An Urgent Call to Action

The High Cost of Insulin in the United States: An Urgent Call to Action

Ideas-Driven Endogenous Growth and Standard-Essential Patents

In this paper, we study the impact of standard-essential status for patents on production possibilities of the economy and long-term growth. As we show, the innovators’ risk of losing the standard-setting game ex-ante attenuates the anticipation of a larger market share. Moreover, when the discovery rate of new technologies is smaller than the discounting rate of the monopoly profits, standards and standard- essential patents tend to be growth-reducing, despite a conjectured positive contribution of standards to the marginal productivity of human capital. Market failures associated with patent abuse have been treated historically by various measures ranging from compulsory licensing to imposing reasonable and non-discriminatory (FRAND) pricing on essential technologies. We show that mandated compulsory licensing has a negative impact on long-term growth, while a voluntary FRAND pricing together with faster rates of follow-up innovations may be growth-enhancing.

Kimble v. Marvel: A Misconceived Affirmation

A clause in a patent license agreement which requires the licensee to continuously render royalty payments even after the intellectual property rights have expired has been a very controversial issue in practice. With the infamous United States Supreme Court Ruling of Brulotte v. Thys, and its subsequent affirmation in the case of Kimble v. Marvel, the legality of continued royalties seems to be a settled provision of law in the American Jurisprudence. However, the judgement rendered in the case of Kimble v. Marvel begs the question as to whether the affirmation was by reason of sound judicial interpretation or the coercion of stare decisis. The interplay between the rule of reason and the per se rule on one hand, with that of the patent misuse theory on the other, was alarmingly unclear. The three were presented as being so closely related that the two distinct dynamics of law could very well be addressed as excessive legislation on the same subject-matter. The present research seeks to analyze the 2015 ruling of Kimble v. Marvel, without the interference of stare decisis and defines the contours under which the judgement was rendered (patent law or anti-trust). Most importantly, the paper will assess the Indian jurisprudential stand with reference to continued royalties, both within patent law and the competition law.

Incorporation of competition‐related TRIPS flexibilities in the domestic law: A case study of India

AbstractAbuse of patent rights can hit the three pillars of the competition law viz., agreements, abuse of dominant position and combination (mergers and acquisitions). In the context of the interface between competition law and patented inventions, the following acts can strike hard at the different pillars of competition law. First, the licensing agreements containing conditions, which may prevent competition, can attract the provisions of competition law to regulate agreements. Second, high prices on patented products can be treated as an abuse of dominant position. Third, refusal to license an intellectual property right may be anticompetitive under certain conditions such as refusing to license the second/dependent patent over the existing patented invention, and refusal on reasonable terms to the competitors. The TRIPS Agreement does contain flexibilities offering remedies to address the public interest aspects including the abuse of patents. This paper examines the implementation of competition law‐related flexibilities in the Indian Patents Act and the Competition Act in the context of pharmaceutical product patents. It argues that though competition law flexibilities are incorporated in both statutes, there is further scope for optimising the scope of these flexibilities.

Antitrust treatment of standard essential patent abuse: China’s experience and lessons

In recent years, how to constrain anti-competitive effects of the abuse of standard essential patents (SEP) has become a hot issue in terms of antitrust enforcement around the world. Since the Anti-Monopoly Law of China took effect in 2008, a number of cases have been investigated in this regard including the Qualcomm case concluded by China's antitrust powerhouse, the National Development and Reform Commission. China's antitrust authorities have been making use of competition law as an effective weapon to balance the SEP power and to safeguard consumer rights in the telecommunication sector, and will continue to do so in the future. This article aims to review the laws and practices of the antitrust regulation of SEP abuse, cover the in-process guidelines of applying antitrust law in the field of IPR and examines important cases. In addtion, an outline and a roadmap is presented alongside the laws and cases.

It’s All About Principle: How Patent Trolling, Over Broad Patents, Evergreening, And Patent Shelving Represent A Departure From The Patent Clause And How To Return To The Principle Of The Patent Clause

This article explores differing patent abuses that reflect how current patent law has swung drastically away from the Patent Clause of the U.S. Constitution. The purpose of the Patent Clause is to ensure that inventors are given a limited monopoly in order to encourage innovation, or to “progress the useful arts and sciences.” There are many forms of patent abuse, but this article will explore patent trolls, overbroad patents, evergreening, and patent shelving as forms of patent abuse that reflect a departure from the Constitutional principle of progress in patent law. Each of these patent abuses hinders progress, so according to the Patent Clause, Congress has the power to correct these abuses and must return to this Constitutional principle of progress. In addition, the Court must answer inconsistent or unanswered questions, where Congress has failed to do so. All of these patent abuses are related to one another, so solving one of these patent abuses will help prevent another patent abuse discussed. Furthermore, this article also proposes various solutions to decrease and prevent patent trolling, overbroad patents, evergreening, and patent shelving.

Reasonable Patent Exhaustion

A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended when the Supreme Court held that the sale of a patented article exhausts the patentee seller’s rights to enforce restrictions on that article through patent infringement suits. Further, reversing the Federal Circuit, the parties cannot bargain around this rule through the seller’s specification of conditions stated at the time of sale, no matter how clear. No inquiry need be made into the patentee’s market power, anticompetitive effects, or other types of harms, whether enforcement of the condition is socially costly or valuable, or has a positive or negative impact on innovation. None of this is relevant. Lexmark was attempting to use patent law to impose a variable proportion tie – in this case, a requirement that users of its printers also use its own original equipment toner cartridges. The general although not unanimous consensus is that such arrangements are economically beneficial, and largely everyone agrees that they are beneficial when the seller lacks market power, as Lexmark did in this case. Impression Products reveals an economic deficiency that manifests all too frequently when patent law is brought to bear on market practices. Economic concepts such as market power or output effects which are commonly used in antitrust law are virtually unknown in patent law. This fact has inclined the courts to go to wild extremes – such as equating every patent with monopoly, or concluding that a patent is a mere property right and that anything done within the scope of the patent should therefore be permissible. The result, as in this case, can be draconian rules that are indifferent to effects on innovation, competition, economic efficiency, or any other measure seems relevant to innovation policy. One thing the Supreme Court did not discuss is the Patent Misuse Reform Act, which provides that no patent owner shall be denied relief in an infringement action because it “conditioned…the sale of the patented product on the…purchase of a separate product…unless…the patent owner has market power…” That language clearly creates an exception to the exhaustion rule for tying arrangements where the defendant lacks market power. This paper considers whether the Supreme Court was correct to ignore that statute. The exhaustion rule also produces odd result of giving patentees an incentive to argue that components that they sell do not embody their own patents. If the product is not covered by a patent, then it is not exhausted. At this writing the issue is being litigated in the Apple v. Qualcomm dispute over Qualcomm’s post-sale restrictions on telecommunications components. The Supreme Court based its patent exhaustion holding on concerns about restraints on alienation, which it presented as rooted in the common law. But the common law’s rules on restraints on alienation are much more complex than the Supreme Court acknowledged. The common law typically upheld restraints that were limited in time, and restraints enforced by patent infringement actions are by definition limited by the life of the patent. This paper concludes by arguing that the Supreme Court would have been wise to develop a more nuanced exhaustion rule that examined actual effects likely to result from a particular restraint.

Is There any Blood on my Hands? Deportation as a Crime of International Law

AbstractThe present article revisits international criminal law as a tool for sanctioning the most patent abuses against migrants. Although deportation is traditionally considered as an attribute of the state inherent to its territorial sovereignty, this prerogative may degenerate into an international crime. The prohibition of deportation has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War. This prohibition has been further refined over the past 15 years by an extensive jurisprudence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.Against such a background, this article demonstrates that, in some circumstances, deportation may amount to a war crime, a crime against humanity or even a crime of genocide, depending on the factual elements of the case and the specific requirements of the relevant crime. This article accordingly reviews the constitutive elements of each crime and transposes them into the context of migration control. It highlights in turn that, although its potential has been neglected by scholars and practitioners, international criminal law has an important role to play for domesticating the state's prerogative of deportation and infusing the rule of law into the field of migration. The article concludes that there are reasonable grounds for asserting that a crime against humanity would have been committed in the Dominican Republic and Australia with regard to their deportation policy.

Intellectual Property Rights Vis-A Vis Right to Health: A Critique

Health is a fundamental human right indispensable for the exercise of other human rights. The Article 25 of the Universal Declaration of Human Rights, 1948 mentioned health as part of the right to an adequate standard of living. The International Covenants, Treaties relating to human rights and the Constitutions of various nations recognize that a number of elements would be encompassed by the right to health from prevention to cure to access to drugs. However, health trends indicate that despite progress made in the last 35 years, millions of the people in the developing countries do not have access to the medicines which are required for treating diseases. One of the significant reasons for the lack of access of essential medicines required for needed treatment is the high prices fixed for those drugs. Strong intellectual property protection keeps prices inflated up to one hundred times the cost of manufacture of drugs. Monopolies are created by patents and they restrict competition in pharmaceutical market and permit patentee to set up high prices. It clearly indicates that the linkage between intellectual property rights and health has been the focus of much debate. Much initiative has been taken by World Intellectual Property Organization, World Trade Organization (WHO) and World Health Organization (WTO) through Trade-Related Aspects of Intellectual Property Rights Agreements (TRIPS), Doha Declaration and then the 30 August 2003 Compulsory License Import Export mechanism for providing safeguards to remedy the patent abuse, giving primacy to the public health over private intellectual property and also clarifying the WTO members States’ rights for using TRIPS safeguards. However, such measures failed to resolve the terrific issue ensuring production and export of generic medicines to developing countries that were incapable to produce them and also certain concepts remained un-clarified demanding clear guidelines to be issued in this respect at the international level for removing various types of controversies which still arise between developed and developing member States. Moreover, the intellectual property rules in TRIPS have been observed to be considerably less stringent than the rules developing countries are increasingly adopting in free-trade agreements known as "TRIPS-plus" agreements with the United States and other Western Governments which put greater restrictions on the use of TRIPS flexibilities like, compulsory licensing and parallel imports making it much more difficult for generic drugs to enter the market upon patent expiration and then extend patent periods beyond twenty years. Consequently, the developing countries that attempt to bring the price of the medicines down have to come under pressure from the industrialized countries and multi-national pharmaceutical industry for implementing patent legislation that goes beyond the obligations of TRIPS. However, in India Glivec case is remarkable because the judgment has a positive impact on affordability and accessibility of medicines. Now, it will be more difficult to indulge in ever-greening in India.This paper attempts to analyze critically at the global and national level two bodies of law, human right to health and intellectual property rights in order to examine certain core issues such as how despite the interactions concluded between both the bodies of law at the international level, the monopoly right conferred via intellectual property legislations transgresses the right to health particularly right to access to drug through the practice of ever-greening and threat of trade sanctions or corporate litigation from both pharmaceutical companies and developed countries. Further this paper aims to study various cases of external pressures put upon the developing countries from the side of developed nations in order to stop the entry of competitive generic medicines in the global market in the context of Indian landmark judgment and then to suggest various measures such as: making coherent, consistent and balanced legal norms at international level clarifying different concepts and issuing clearly stringent and mandatory guidelines/regulations in TRIPS providing a place of supremacy to fundamental right to health over intellectual property right; establishing high patentability standards at international level; developing Publicly funded research or pharmaceutical subsidies as well as creating policies to relax patents and increase the affordability of generic anti-retroviral through coordinated effort of global system. In order to achieve this objective, the doctrinal research is done by studying various Reports, Declarations, and Conventions of United Nations Organization and its different specialized agencies like; World Intellectual Property Organization, World Health Organization and World Trade Organization, free trade treaties among different nations as well as various other relevant national statutory enactments. The important works of a number of jurists contributing towards this field has also been the material of study.

Stretching the Limits: Measures Available Under Article 8(2) TRIPS for Pakistan

The TRIPS Agreement is by far the most ambitious multilateral agreement on intellectual property. The features that distinguish it most from other agreements are the provisions on enforcement and dispute settlement, the first of their kind in any international IP instrument. In the presence of such overarching obligations, developing and least-developed WTO Members may find it difficult to participate in international trade without conferring considerable protection to intellectual property right holders, even where such protection may not be congruent to their developmental, social and economic objectives. However, the incorporation of flexibilities in TRIPS may provide such considerable room for discretion when implementing TRIPS provisions in their domestic legal systems.This paper discusses the flexibilities in Article 8(2) TRIPS related to measures that WTO Members may take to prevent or address abuse of patents. This paper attempts to determine the scope of the flexibility through competition law compulsory licenses, patent misuse defense and grant of injunctive relief after the U. S. Supreme Court’s eBay decision.On the basis of the foregoing, the paper assesses whether the statutory law as well as the judicial practice in Pakistan has incorporated the flexibility in Article 8(2) to the fullest extent possible. The paper concludes that the Pakistani law and practice may be improved to incorporate the full flexibility in Article 8(2) as well as to comply with other provisions of TRIPS such as Article 31.

Patent Assertion Entities & Privateers: Economic Harms to Innovation and Competition

This article assesses aggressive rent-seeking activities by patent assertion entities (PAEs), especially in patent-thick industries. Patent thickets are “target-rich” environments, providing ample opportunities for rent-seeking and abuse of patents by PAEs. Fundamental differences in the strategic interests of practicing entities (PEs) and PAEs increase the opportunities for, and economic harm caused by, PAEs engaging in patent hold-up. PAEs exploit deficiencies in patent policy and enforcement, including the use of injunctions, excessive damages awards, and costly settlements stemming from actual or threatened litigation, the high cost of which increases “hold-up value.” The article also examines the threat to competition and innovation caused by “privateering”: the transfer of patents from PEs to PAEs. While there may be limits on the use of antitrust to moderate all of the harms caused by PAEs, cases involving privateering are ripe for investigation, prosecution, and remedy by enforcement agencies and private antitrust actions.