To deal with access barriers under global patent regime, an effective solution was required to deal with restricted use of compulsory licensing and limited definition of patentability under TRIPS enforcement (WHO, 2012). At this point of time, Medicins Sans Frontiers (MSF) entered presented its ideas for resolving access crisis to Ministry of Foreign Affairs in France. Same proposals were also submitted to UNITAID for their consideration. The main challenges in the way of access to an- tiretroviral therapy to affected people were economic and legal. MPP is a model proposed to solve both issues. MSF conceived idea of MPP in its papers submitted to Foreign Affair Ministry of France and later to UNITAID. First focused government use of patents for non-commercial purpos- es and the second discussed and proposed patent pools. First paper deliberated the need of UNITA- ID purchase of AVRs from most affordable source in line with TRIPS flexibilities and Doha Decla- rations with the basic idea of protecting public health and public interest (WHO, 2012). Second pro- posal was to create medicine patentpool to address the issue of access to medicine for HIV positive population with accessibility, affordability, and availability problems. Fundamental idea was regis- tration of drug under patent with pool. The pool further licences same for production to various manufacturers on market competition and in return paying incentive to patent holder as royalty or compensation. This idea was to bring balance between concepts of patent protection in line with protection of public health as public interest.
PTO could also consider limiting the applicability of Vouchers to the field of technology in which they have been granted. Such a measure could help make the value of the Voucher somewhat commensurate with the effort required to gain the Voucher. In other words, a Voucher earned through the licensing of a pharmaceutical-related patent could only be used for reexamination of another pharmaceutical-related patent. The suggestion to limit transferability by field of technology rests on the assumption that investments required to obtain a patent are, in general, higher in some fields (e.g., pharmaceuticals) than others (e.g., climate change technology, seed varieties), although there may be important exceptions to this general assumption. Such restrictions on transferability would help to prevent a potential „flooding of the market,‟ in which Vouchers received from the licensing of lower-cost technologies would be traded on the market and applied to higher- cost technologies, thereby reducing the incentive of owners of higher-cost technologies to engage in the desired licensing behavior. In particular, the Medicines PatentPool believes it would be important to ensure that the Voucher created an incentive for pharmaceutical patent-holders to grant voluntary licenses through this program.
The profits of original and generic drug enterprises that refused to join the MPP before patent expiration are influenced by sales income, drug cost, and marketing cost. The incomes of original drug enterprises joining the MPP before patent expiration were determined by the sales income of a product and the license fees of drug patents. Therefore, the profits of original and generic drug enterprises in the MPP can be calculated. When governments agree to join the MPP, the total medical expenditure is equal to the total volume of the medicinal purchase and subsidies to original drug enterprises. If the government does not agree to join the MPP, the total medical expenditure becomes equal to the total cost of the medicinal purchase.
Compulsory licensing can provide an additional financial incentive for patent holders to voluntarily license to the MPP. 227 To be compliant with TRIPS, low- and middle-income countries issuing compulsory licenses must remunerate patent holders for the unauthorized use of their patents. 228 Remuneration under compulsory licenses issued for public health reasons in low-income countries typically ranges between zero and six percent of the price of the generic product. 229 In contrast, patent holders have been able to negotiate royalties between three and five percent in voluntary licenses with the MPP. 230 Since patent holders have little control over the terms of compulsory licenses, 231 patent holders are likely to voluntarily license to the MPP if remuneration from the compulsory license would be less than the royalties the patent holder would receive from the MPP. 232 In this way, the mere threat of compulsory licensing and uncertainty over the terms of compulsory licenses places pressure on patent holders to voluntarily license to the MPP. 233 This threat of compulsory licensing can serve as an additional bargaining tool in licensing negotiations, lessening the imbalance of bargaining power in licensing negotiations between patent holders, pool administrators, and generic manufacturers. 234
patents in a pool can eliminate competition and lead to elevated licensee fees. The model in this paper provides theoretical support for such a presumption, but also provides a few caveats in applying such a policy. In particular, section 3 makes a distinction between ex ante and ex post patent pools, depending on whether patent validity has been established in the court, and derives the optimal patentpool policy. Section 4 extends and checks the robustness of the basic model by considering the possibility that the probability of patents’ validity can be correlated. This case arises naturally if the nature of the patent dispute entails the relative priority of patents since one party’s validity automatically implies the invalidity of the other patent. Concluding remarks follow in section 5.
Suppose that there is no joint defense clause in the patentpool and each patent is defended by two separate firms. Without loss of generality, assume that α>β, that is, patent A is stronger than patent B. For the third party, the litigation would be successful only when it succeeds in invalidating both patents. Let me denote the benefits from invalidating both patents as V. This implies that the optimal litigation strategy for the third party is to litigate them sequentially unless there are any economies of scope in simultaneous litigation. The reason is that sequential litigation provides an option value of saving litigation costs in case the third party fails in invalidating the first patent. To see this, the expected value of simultaneous litigation is given by (1−α) (1−β) V − 2χ. If the third party litigates A first, it will litigate B later only when it succeeds in invalidating patent A. Thus, its expected payoff is given by − χ + (1−α) [ (1−β) V − χ] = (1−α) (1−β) V − (2 −α) χ. Similarly, if the third party challenges patent B first, its expected payoff from litigation is given by (1−α) (1−β) V − (2 −β) χ. A comparison of these three payoffs yields the following proposition.
The pool bottom must be completely flat and level to a tolerance of 1 cm / 10 m, so that the pool width elements can be installed with a plumb-line on smooth surfaces. They walls must also be built and installed with a plumb-line, and should have no cracks or chips measuring more than 2 mm.
situations, the patentee has the opportunity to select the level of care before the technology user. The patentee has the opportunity to decide whether to attach markings to a product, and in what form, and how to write the patent specification. Only later does the user decide how much time they will invest in searching for the patentee. Under a strict liability plus contributory negligence rule, this may lead to less than optimal incentives for the user. If the patentee is contributorily negligent and if the user can see this ex ante, then the user may fail to take reasonable care (knowing that any accidents which do occur will be attributed to the patentee’s carelessness). For example, if a patentee fails to attach notice to a product, a user, upon inspecting the product, may decide not to spend any further time searching for the patentee, even though doing so would help reduce accident costs, because the user accurately predicts that, if they do infringe a patent, they will not be held liable on account of the patentee’s contributory negligence. On the other hand, under a negligence rule, the user would still have the incentive to conform to the due care standard.
The appropriability story has undeniable elegance and common- sense appeal, but it appears to suffer from one major problem: it does not seem to be borne out by reality. For the appropriability story to hold, patents must be shown to be an effective means of capturing value. In other words, patent protection must be valuable for inven- tors. Yet extant empirical research consistently demonstrates that in- dustry participants do not consider patents an effective appropriation mechanism; on the contrary, they deem patents inferior to other methods, such as lead time, learning curve advantages, and even se- crecy. 46 More importantly, other empirical studies suggest that the av- erage value of an issued patent is actually quite small. The vast major- ity of U.S. patents pass their lives in complete idleness, gathering dust rather than revenues. 47 According to Mark Lemley, “the total number of patents litigated or licensed for a royalty (as opposed to a cross- license) is on the order of five percent of issued patents.” 48 Worse yet, data about renewal rates reveal that nearly half of U.S. patents do not even reach the ten-year mark, and two-thirds lapse before the full twenty-year statutory protection term, as inventors prefer to abandon their patents and forego the payment of a modest renewal fee. 49 The
Results show that patents originating from similar states in terms of patenting profile with similar trade lags and patent citations are more likely to be traded outside the state compared to patent applications. This indicates that patent grant plays a role in the reach of the market for ideas. Furthermore, we find that the patent grant effect varies across technology fields. More specifically, patent grant seems to increase the reach of the sale in Electronics and Mechanicals while it has a modest effect in Computers and Pharmaceuticals. Finally, for patents that originate from the forty less innovative states in the US, patent grant has a greater impact than for patents that originate from the top ten innovative states. This finding implies that, the publicity associated with the patent grant is more important in shaping the geographic reach of patent transfers when patents originate from less innovative states.
liability for patents must be strict. 257 The question of fault in patent law has long been a judicial decision. Lynda J. Oswald demonstrates in her history of patent infringement that U.S. courts adopted strict liability for patent infringement in the nineteenth century. 258 Courts and early treatise writers argued that patents were a form of property and imported concepts into patent from property law, including the strict liability infringement rule. 259 This rule was upheld by the U.S. Supreme Court in Hogg v Emerson in 1850 and has remained part of patent law ever since. 260 When Congress revised statutory patent law, there was little questioning of whether accidental infringement ought to be strict or fault-based. 261 Courts today retain the authority to modify this judicially-created rule. Both the U.S. Supreme Court and the Federal Circuit have the authority to hold that a defendant only be held liable for negligent accidental infringements of patent rights. Therefore, in the absence of Congressional action, courts could find that in accidental infringement cases, a defendant who proves that she has taken all reasonable care, is not within the definition of an infringer, and thus not liable. Section 287 would thereafter layer over this basic liability rule. The underlying liability rule would be negligence, and Section 287 would provide an evidentiary rule that, in cases of products, a defendant is taken to be liable if the patentee attached appropriate marking to the product.
A more complex issue is whether the examination fee should be subsidized. Examination fee subsidies have the same function as filing fee subsidies in encouraging more patent filings. It also has a similar effect to that of grant-contingent rewards in increasing the examination request rate and grant rate, as our empirical results demonstrate. However, it disables the filtering effect of the examination fee system. The examination fee requires an applicant to reconsider the patentability and economic value of its application after filing. For example, an applicant may discover a prior art making the patent unlikely to be granted, or he may become less optimistic about appropriation potential after filing. Requesting examination would not be economically beneficial in these cases. Dropped applications before examination can decrease patent examiner workload, but subsidizing the examination fee may weaken the motivation to make a careful assessment before requesting examination.
reasonable construction in light of the specification of the patent in which it appears.” 37 C.F.R. § 42.100(b). Petitioner is not required to define every claim term; thus any claim term not specifically discussed will have its ordinary and customary meaning. Fed. Reg., Vol. 77, No. 157, p. 48700 (Aug. 14, 2012) (see Comment 35). Where the construction of specific terms is not necessary to resolve issues before the Board, the Board can refrain from construing those terms. Leo Pharmaceutical Products, Ltd. v. Rea,
This study was guided by the novice-to-expert theory by Dr. Patricia Benner, R.N., Ph.D., FAAN, FRCN (Benner, 2015). Although her theory is most often associated with a new graduate nurse entering the nursing profession, Dr. Benner’s novice to expert theory was an appropriate choice when applied to the proposed study of an experienced medical/surgical float pool nurse transitioning to a critical care specialty. In her theory, Dr. Benner discusses the nurses’ exposure and experience with patient care and suggests five stages of experience a nurse goes through (Benner, 2011).
A separate pool simulcast can be affected only by a local tote problem or an error in program information dissemination from the Host, which may be corrected in a timely manner. Procedures involving invalid pools and refunds are the same as for a live race. Some jurisdictions require a video feed or Stewards phone call to verify the lock time and the OOF.
Over the past decade, scholars have identified many entities who use the patent system in ways that differ from the traditional model of patent use—entities such as patent assertion entities, patent aggregators, or owners of large patent portfolios. This Article presents a model that explains the behavior of some of the biggest and most controversial entities in the patent system. This Article argues that such entities are engaged in “patent shopping” where the plaintiff makes a strategic choice of patent in order to obtain the best facts and substance in a case and thereby maximize the chance of a favorable outcome. The patent shopping model draws by analogy on forum shopping, where plaintiffs make a strategic choice of forum in order to maximize the chance of a favorable outcome. The patent shopping model stands in contrast to the traditional model of patent use where a patentee owns a small number of patents closely related to a commercialized invention, which are drafted to encompass possible attempted work-arounds. Under the traditional model, patent acquisition comes first, infringement second. This Article proposes that, for patent shoppers, the chronology is flipped: infringement first, patent acquisition second. Instead of drafting patents to predict infringement, patent shoppers are able to react to infringement by selecting a patent that fits the infringing behavior. This is possible because most companies are constantly infringing on many different potential patents, infringement which has historically not been enforced. Patent shoppers have access to hundreds or thousands of patents, related to many different inventions, and can identify an instance of infringement that is a good target for enforcement and can then acquire the patent(s) of their choice. For instance, patent assertion entities may evaluate large numbers of patents that are available for sale and then select patents that can be most profitably enforced. Similarly, owners of large patent portfolios can shop in their own closet by selecting the best patents for enforcement from a wide array of options.
that the relationship between the value correlation of patent activity and the scientific value of patent information, and the results show that using scientific value indicators based on citation related information can as patent quality indicators, and they find that when they through patent quality related information to conduct communication successfully, the relationship between R&D expenditure and stock right value in more successful companies Tend to more consistent .
An internationally accepted reference for information on published patent documents is the DOCDB database administered at the EPO. This file is designed to be a comprehensive record of patent publications and may be the best source in the world for extracting data on families based on published documents. Unfortunately the restriction to publications means that data are not completely up-to-date, because patent publications consist of: a document that records details of the application, generally produced 18 months after the priority forming first filing; and then, only in case of a successful substantive examination by the patent office, a further document that records the grant of the patent (Bainbridge, 1992). But an exception to this practice has been that the USPTO did not publish applications until 2001, so that the only historical record of a patent at the USPTO in DOCDB until recently has been the grant document. Details of all the patent publications are recorded in DOCDB and include the references given in those publications to the underlying priority forming first filings. It should be noted that these referenced priority applications do not in fact themselves need to have been published.
Finally, it should be taken into account that the examination process is subject to various strategic incentives of the patent applicant. These incentives should be especially pronounced in cases where the patent applicant attaches high private value to the underlying invention. On the one hand, applicants might show a higher level of cooperation with the examiner during the examination (e.g. by responding faster to requests) in order to shorten examination time and to get full patent protection earlier. On the other hand, if patent applicants receive restrictive search reports or the examiners requests drastic changes in the claims which could reduce the value of the patent, applicants might be more willing to engage in lengthy negotiations with the examiner if the underlying invention is potentially valuable. Moreover, some applicants, e.g., in biotechnology, may seek to delay the patent grant, since it triggers the need to initiate the relatively expensive national validation of the EPO grant immediately. This is an effect that we cannot identify at this point, but we control for it using technical field dummies. Clearly, this issue requires attention in future work. We try to disentangle different incentives in the empirical part of the part. The data and variables used are introduced in the next section.