Intellectual property news affecting business and everyday life
posted by Lawrence B. Ebert at 1:43 PM
I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.
1 Comments:
I said: A patent can effectively confer a monopoly." (emphasis in original)
I used the word "can" because they don't always.
I used the word "effectively" because they do not confer a monopoly in and of themeselves, but can the single most important factor in conferring a monopoly if the circumstances are otherwise correct (eg, no blocking patents, patentee has means to supply the market at some meaningful level, product not illegal to sell, no competitive design-arounds, patent not suspended due to public health emergency, etc., etc., etc.). For example, I think it fair to say that patents currently effectively confer a monopoly on atorvastatin (eg, Lipitor) in the US and some other countries. They do not confer this monopoly as a matter of law, but the legal protection they provide is the main thing that confers this monopoly in fact. The very day the key patent expires, the atorvastatin monopoly will go away. I would bet you $100 on that. The patent is the but-for cause of the observed monopoly. More importantly, the patent is the proximate cause of the monopoly. And this "monopoly" on atorvastatin is real and substantial.
As the Supreme Court said in the Precision Instruments case "a patent is an exception to the general rule against monopolies." I guess I could have said that a patent "can help confer a monopoly," but really, when a patented product is monopolized, then it is usually the patent that is far and away the main factor.
I have practiced with some oldtimers who have the same phobia about admitting that patents have any relevance to the existence of monopolies. That particular phobia made sense before the age of antitrust ended in 1981. Now -- who cares? Say it loud:
A patent can effectively confer a monopoly. Unless you are in the chemical arts, though, you better have an awfully good claims drafter and a lot of foresight wrt alternative embodiments.
Post a Comment
<< Home