A Misunderstanding

At Patent Docs, Harold Wegner, a partner at the law firm Foley & Lardner, says that the popular idea that patenting "preempts follow-on research" and inhibits innovation is wrong and based on a flawed understanding of what patents are for. "A central axiom of any patent system is that the public has an immediate right on publication of a patent to experiment on newly patented technology," Wegner says. "This is precisely to encourage follow-on innovation. The right includes examining technology to see how it operates; comparing technology with competitive innovations; testing technology to demonstrate differences to the Patent Office; and, above all, designing around patents, to create competitive, noninfringing and sometimes better technology." In fact, he adds, patenting is essential to biotechnology, the pharmaceutical industry, and others, and there is almost never litigation filed against those who do such follow-on research because it is expected to happen. Recent cases like Prometheus and Myriad have perpetuated the "myth" that patenting is anathema to innovation, Wegner says, and the Supreme Court will eventually have to deal with the issue in order to settle it.