Random Ramblings about stuff I see going on in biotech, internet and the stuff I read.

Tuesday, May 01, 2007

more on KSR

In my other post, written while I was still reading the decision, I sort of didn't say anything. Just posted the, to me, interesting bits of the decision.

Now, some things I think are going to shake out of this in no particular order.
  • Less license income for Universities. I think this because a lot of what I see coming out is incremental improvements that involve heavy use of someone else's patents. This is precisely the stuff that the ruling goes after.
  • MORE legal battles. I know I am emboldened today. I assume many others are as well. Someone is going to role the dice in court on this in a bigger way just to see what happens. Kind of hope it is us, but would guess someone will be cautious one here and back off.
  • Put together with the previous ruling in the Medimmune case (and some commentary on it) , which essentially says that "A licensee in good standing can still challenge the validity of the patents" - I see licesors pushing for high up front fee's and licensees pushing back. The high upfronts dont make commercial sense if the technology doesn't work out but the licensor needs to worry about the attack on the patent. Given the lower bar to get it thrown out on obviousness, the attacks will be more frequent. OR the royalties I am willing to pay will be lower, as the cost to fight a patent is still a couple of million dollars and I may not want to bother.
  • MORE INNOVATION. Many biotechs and pharmas are freaked about this BIO filed a brief in opposition to the way this came out. I think they are wrong, but I am in a different business than they are. I fight every day with the patent landscape. Cleaning up a lot of this crap and getting it out of the way will make my life a WHOLE lot better. We will push stuff out much faster if we can clear a lot of the cruft out the road. This will take a decade to come true, as that is the speed things move at, but a boy can dream.... I think the 1 patent 1 compound people will still have a defense if they truely did something. If not, they won't and there will be a problem. I leave that up to someone who knows that area to speak to (derek?)
  • We will spend less on IP filings. If we apply a bit of a filter to our filings we could save money. We won't of course... we will keep on going the way we have been going and see what the patent office does to them. My hope is that they start kicking more back and that we get a chance to actual weed our garden. As long as it isn't happening to us only, it is good. If everyone's garden gets weeded, there will be space to actually ship product.
  • This will help, I think, Diagnostics a lot more than it helps Pharma and biotech. The diagnostics world, as it moves toward molecular diagnostics, is a patent mess. Cleaning that up will help this transition a whole lot more. Pharma and biotech are pitching companies with smaller amounts of IP coverage that if they don't have it they have nothing. That increased level of risk will make them harder to get funded. Diagnostic companies, on the other hand, are generally not bringing IP to the table and are instead trying to duck dodge and weave around it (or exclude everyone else from using the IP they do have.)

No comments: