The Rise of the End User in Patent Law
Gaia Bernstein
Our patent system focuses on the actions of two players: the patentee and his competitor. It assumes that the competitor will represent the interests of the end user. But increasingly, end users are becoming significant players in the patent system, their interest sometimes diverging from those of the patentees’ competitors. The growing prominence of the end user is a phenomenon that is relevant across industries, incorporating as diverse as the pharmaceutical, software and telecommunications industries.
In the pharmaceutical industry patients’ independent interests in access to drugs and medical tests are increasingly taking center stage. Patients’ interests in access to generic drugs are at the center of the controversy involving the pay-for-delay agreements between brand and generic manufacturers, which has now reached the Supreme Court. In another controversy, currently before the Supreme Court, patients were among the plaintiffs who challenged Myriad genetics patents on the breast cancer genetic mutations seeking increased access to these tests. At the same time, in the telecommunications and software industries, non-practicing entities (NPEs) are increasingly targeting customers of the patentee’s competitors. Companies, such as Starbucks, who do not manufacture technologies but use them to service their clients, are increasingly targeted by NPEs.
These end-users, finding that the patentee’s competitors often fail to serve as an effective shield against patent claims, are changing patent practice in multitude of ways to protect their interests. This Article sheds light on these practices, which include increased involvement of non-competitor parties in PTO procedures (such as submissions during prosecution, re-examination procedures and post-grant challenges) and changes in defense mechanisms, including the rise of defensive patent aggregation firms and joint defense agreements. This Article aims at highlighting these important changes and at the same time argues for the need to adjust long-standing patent law doctrines, such as the standing doctrine, that limit the actions of end users under the assumption that these interests would be adequately represented by competitors.
While this Article seeks to emphasize the importance of these changes it argues for the need for additional transformation of traditional patent law doctrines, such as the standing to sue to doctrine.