This is Erik B Flom's Typepad Profile.
Join Typepad and start following Erik B Flom's activity
Join Now!
Already a member? Sign In
Erik B Flom
Recent Activity
The drug example is actually more complicated than that because of regulatory exclusivity. While the company holding the approved brand cannot sue under regulatory exclusivity, it is an effective barrier to entry. After all, selling medicinal drugs without FDA approval would have consequences. The current controversy over the length of regulatory exclusivity for biologic drugs shows that regulatory exclusivity is a viable way to protect initial investment, though not necessarily ongoing investment. Practicing entities do not necessarily practice a particular patent that they have. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 (1908) involved a patent for a paper bag that the patent holder did not make. The notion of cost-recovery is unclear because of line-drawing problems. Should the pioneer count all of his investment in better paper bags, or only those that directly resulted in the marketed product? In terms of a factor to raise the target recovery amount the risk of failing on a capital investment ought to be considered as well. If 10 start-ups with competing patented products start, and one ends up with the market, is the target investment recovery that of the one player or the market including the failed would-be participants?
Toggle Commented Jul 22, 2013 on Patent Trolls—Posner at The Becker-Posner Blog
1 reply