When a startup gets ready for some M&A action (and if they’re in healthcare, getting to this point was probably hard-fought and hard-won), a patent troll could come knocking. While the Federal Trade Commission is finally looking into patent trolls’ effect on innovation, patent trolls still lurk, according to a blog in the Wall Street Journal.
Whether your company has infringed a patent or the patent trolls are merely fishing for trouble, here are the highlights from WSJ‘s Ed Zimmerman’s, plus attorney Mark Kesslen’s, sage advice:
Loose lips sink ships. So do overused keyboards.
Founders who don’t overcome their anger often email their co-founders saying things like, “Crap, we’ve got a huge problem because…” Those emails make great exhibits for the troll’s litigation filings, but don’t help the startup.
Lawyer up and be up front.
You’ll need your CTO and your patent counsel (and, depending on whether you’re in the midst of a deal, your deal counsel) involved.
You can’t be too technical about the specific language of the claims because trolls can also rely on the “doctrine of equivalents.” That doctrine says that if the product or service doesn’t seem covered by the specific language of the claim, but performs substantially the same function, in substantially the same way to yield essentially the same result, it should still be found to infringe.
Last resort?
A Deep-dive Into Specialty Pharma
A specialty drug is a class of prescription medications used to treat complex, chronic or rare medical conditions. Although this classification was originally intended to define the treatment of rare, also termed “orphan” diseases, affecting fewer than 200,000 people in the US, more recently, specialty drugs have emerged as the cornerstone of treatment for chronic and complex diseases such as cancer, autoimmune conditions, diabetes, hepatitis C, and HIV/AIDS.
Hopefully if all else fails, your counsel can invalidate the patent.
Check out the full story for more insider tips.
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