Critics of efforts to mitigate patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. abuse often make claims that patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. concerns are overblown, or that the whole concept is a tech industry fabrication. But recent reporting from Bloomberg Law highlighted how patent trolls are now an omnipresent concern in the healthcare sector, prompting worry among some of the world’s leading drugmakers, biotech firms, and medical device companies. As a result of these attacks, nearly 60 percent of life-sciences companies have developed formal legal defense strategies against patent trolls with some observers calling patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. defenses “a strategic priority on the same level as with R&D investments.”
These legal attacks are on the rise. According to Unified Patents, patent trolls have filed 370 cases against medical device companies since the beginning of this year, a number that is expected to top the 512 filed in 2024 and 385 in 2023. Medical sector cases now account for about one tenth of all patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. lawsuits since 2020.
As medical device companies increasingly incorporate connectivity technology like WiFi and Bluetooth in their products, it has become convenient for trolls to lump them into sprawling lawsuits against tech firms. But litigation is not limited to tech-product adjacent cases. There are, for example, instances of patent trolls going after companies that made COVID-19 tests and ventilators during the pandemic. More recently, a patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. targeted multiple companies that produce auto-injector and infusion devices that make it easier for patients with diabetes or autoimmune disorders to administer their own medication safely. As the medical industry continues to shift from filing specific chemical compound patents to device patents, we can expect more opportunities for patent trolls to insert themselves.
As Patent Progress readers are well aware, litigation investors have pursued paydays by backing patent trolls that target technology companies. Now, that same playbook is being used against medical device companies. Patent trolls will often file a single lawsuit against multiple technology and medical companies, allowing litigation funders to quickly recoup investments by accumulating many settlement payouts from various defendants. For many medical device companies, it’s simply less expensive and burdensome to pay a settlement rather than endure the high costs of fighting a case in court, even if the accusations are weak. And the same dynamics that allow trolls to demand inflated damages in other technology areas are present with medical devices, as trolls demand damages based on the value of an entire medical device, not only the allegedly infringing technology.
As Bloomberg Law reporting rightly states, legislation pending in Congress could give patent trolls more leverage. The RESTORE Act would make it easier for patent trolls to obtain injunctions and extract massive settlements, while other legislation would make weak claims far harder to challenge. The last thing we need are new laws that give patent trolls more tools to slow medical innovation and reduce patients’ access to devices that could improve their health.
Congress aside, life-sciences companies should also closely watch newly-confirmed USPTOUnited States Patent and Trademark Office. See also PTO. Director John Squires to see if he upholds or rejects recent alterations to the agency’s post-grant reviewA procedure by which a third-party may contest issuance of a patent at the USPTO within a short period (9 months) after issuance. Introduced to the U.S. by the AIA. The EPO has a similar procedure. practices. These changes, implemented by Acting Director Coke Morgan Stewart earlier this year, weakened the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. by creating a new bureaucratic hurdle that petitioners must clear for their cases to advance and a new arbitrary standard that petitioners must overcome, leaving many medical innovators without the most effective means of countering patent trollAn entity in the business of being infringed — by analogy to the mythological troll that exacted payments from the unwary. Cf. NPE, PAE, PME. See Reitzig and Henkel, Patent Trolls, the Sustainability of ‘Locking-in-to-Extort’ Strategies, and Implications for Innovating Firms. demands.
A swift reversal of these changes is needed to stem the rising tide of healthcare sector patent abuses, whether it be pharmaceutical companies shrouding their products in “patent thickets” or patent trolls increasingly targeting medical devices.
