You might know that patents exist to incentivize innovation. In other words, the inventor who meets patent standards is given a period of market exclusivity (permitting the inventor to exclude others from various activities involving the patented invention) in exchange for publicly disclosing his/her invention. While this may be sufficient incentive for many technological areas, rare diseases pose a unique challenge.

Drug companies don’t generally target rare diseases. Why? A small patient population means that even if expensive research efforts are successful, there will not be a large return on investment. In 1983, the Orphan Drug Act (ODA) was passed with the intent to solve this problem. Has it worked? The answer to this question is more complicated than it may seem. Continue reading “Incentivizing Innovation in Rare Disease Research”

It’s a case with a humble beginning, just three Red Line stops south of Loyola’s Corboy Law Center, in the United States District Court for the Northern District of Illinois. But this case also has the potential to effect major and much needed change in the realm of patent law. The Honorable John Z. Lee heard HP Inc. v. Berkheimer in 2016, and subsequently, the case worked its way through the appellate courts. The Supreme Court hasn’t yet decided if it will hear the case because for the last eleven months the Petition for Writ of Certiorari for Berkheimer was pending a submission of an amicus brief from the Solicitor General. The brief—which recommended that the Court deny the Berkheimer petition unless another case, Athena v. Mayo, is granted certiorari—was filed with the Court last week. This case could be one of the first patent subject matter eligibility cases to be heard by the Supreme Court in over five years—despite over 40 rejected petitions on the same issue. Subject matter eligibility matters to inventors, investors, and other patent stakeholders, because it directly impacts what does and does not receive a patent, and thus who does or doesn’t have the right to exclusively market and sell their invention as a reward for their creativity and ingenuity. However, the current test for patent subject matter eligibility, introduced in 2014, has been very difficult for the lower courts to administer. If the Supreme Court decides to grant certiorari for Berkheimer, it will have an opportunity to clarify the test. By more explicitly defining what can and cannot be patented, the Supreme Court, in theory, might better align the expectations of patent examiners, judges, and inventors, allowing the patent system to function more efficiently.

Continue reading “HP Inc. v. Berkheimer: Will SCOTUS Finally Clarify Patentable Subject Matter?”

Trolls are bad. They are bad characters in folk tales. There are also bad internet and social media trolls. Patent trolls join this club. But, what exactly are patent trolls and why have they attracted the attention of the Electronic Frontier Foundation and NPR shows such as This American Life, as well All Tech Considered? That’s what I’m here to tell you about – as well as how to possibly stop/limit patent trolls.

Continue reading “Tolls on Trolls: Can State Laws Stop Patent Trolls?”