[Ip-health] KEI Files Brief of Amicus Curiae in Oil States v. Greene's Energy Group
Andrew S. Goldman
andrew.goldman at keionline.org
Thu Oct 26 10:07:39 PDT 2017
KEI has submitted an amicus brief in support of Respondents in the case of
Oil States Energy Services, LLC, v. Greene’s Energy Group, LLC, currently
before the Supreme Court. The brief is available at
The case centers around the question of whether the inter partes review
(IPR) process is unconstitutional by extinguishing private property rights
through a non-Article III forum without a jury.
These are some of the points the KEI brief makes in response to certain
arguments made by Petitioner (Oil States Energy Services, LLC) and others
who have filed briefs claiming the IPR system is harmful to innovation and
1. There are existing administrative mechanisms to modify patent claims
and rights, including the legislative framework and administrative process
to issuing certificates of corrections and extending patent terms. These
mechanisms are often used to protect patent owners and expand their rights,
sometimes with the support of the same parties seeking to end the IPR
2. Claims that the IPR process has had a negative impact on wealth
creation are flawed, because they only look at the benefits to holders of
patents with weak or bad claims and not the costs of enforcing the bad
patents on the public. One person's loss of income due to an IPR proceeding
eliminating a flawed patent claim is typically another’s savings, and also
an enhanced freedom to operate for other suppliers of innovation.
3. There are already a number of overlapping and layered patent claims
for new CAR T cancer therapies. This is an area where the excessive number
of patents and the complex patent landscape is more of a barrier to
innovation than is the lack of patents.
4. Patents are not the only way to induce innovation and should not be
treated as such.
5. The World Intellectual Property Organization’s Global Innovation
Index describes eighty variables to measure innovation performance and
capacity, with only four relating to the number of patents granted.
6. There are numerous non-patent mechanisms to induce investments in
innovation in the United States, and it is not necessary to enable the
enforcement of bad patents in order to protect investments. Areas where
investments are protected even without the grant of a patent include such
mechanisms as pharmaceutical and agricultural regulatory market exclusivity
and test data protection, and the Orphan Drug exclusivity.
7. There is growing interest in proposals to delink R&D costs from the
prices of medical technologies, as problems of access and affordability
have worsened. Innovation in how we fund and reward innovation is feasible
Andrew S. Goldman
Counsel, Policy and Legal Affairs
Knowledge Ecology International
andrew.goldman at keionline.org // www.twitter.com/ASG_KEI
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