Leveraging Information about Patents: Settlements, Portfolios, and Holdups

Mark R. Patterson

6/25/2014
(Original Publish Date: 7/19/2012)

The purpose of this essay is twofold. First, it serves to emphasize the role played by uncertainty in three otherwise very different categories of cases, involving “reverse payment” settlements, patent portfolios and package licensing, and deception in standard-setting. The source of the uncertainty at issue in each of the cases is different, but in each the unavailable information is not protected by patent law. Second, the essay points out that in these cases the courts nevertheless apply rules that are more appropriate for the information about inventions that patent law is intended to protect. Patent law grants patentees the exclusive right to make, use, or sell their inventions, but it gives them no exclusive control over information about the existence, validity, or other characteristics of those patents. When cases turn not on the technical information in patents, but on the availability of information about those patents, courts should not apply rules that favor patents and patentees. Uncertainty may be inherent in patent law, but it does nothing to promote innovation, so efforts to exploit uncertainty should not be protected.