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« Season's Greetings from Patent Docs | Main | Illumina, Inc. v. Ariosa Diagnostics, Inc. (N.D. Cal. 2018) »

December 26, 2018

Comments

All right, the take home point here appears to be that if you want to have the right to enforce the patent against non-licensees, then you need to put that term in the license agreement. Seems fair.

I actually think the point that has largely been missed is that there has been no commercialization of this technology. It is being studied academically at a research institution, where scientists are simply trying to understand it better and and publish academic papers. The suit even cites mouse experiments as an example of infringement. Diakonos (the company working with the lab now) is trying to fund a phase I clinical trial for terminal cancer patients (but patients don't pay for clinical trials). Thus, there could be no commercialization anyway until FDA approved as a standard of treatment (which is roughly 15-20 years down the road after a phase III trial is approved by the FDA). Knowing this, the suit actually only asks for "damages" for "future patent infringement." There is no specified amount (since money hasn't and isn't being made), and "future patent infringement" is not a thing. And all academic research in this country is protected from such ridiculousness. This was never anything more than a patent troll trying to bully settlement money out of BCM or MD Anderson or someone.

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