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ISTA Pharmaceuticals Inc. Message Board

  • my1styhooacct my1styhooacct Nov 5, 2010 12:51 AM Flag

    very good info

    i was in ista a while back so i still like to keep up.

    here's something that will help, based on Scheiber v. Dolby
    http://www.morelaw.com/verdicts/case.asp?n=01-2466&s=IN&d=19905

    When the patent term ends, the exclusive right to make, use or sell the licensed invention also ends. Because the invention is available to the world, the license in fact ceases to have value. Presumably, licensees know this when they enter into a licensing agreement. If the licensing agreement calls for royalty payments beyond the patent term, the parties base those payments on the licensees’ assessment of the value of the license during the patent period. These payments, therefore, do not represent an extension in time of the patent monopoly . . . . Courts do not remove the obligation of the consignee to pay because payment after receipt is an extension of market power—it is simply a division of the payment-for-delivery transaction. Royalties beyond the patent term are no different. If royalties are calculated on post-patent term sales, the calculation is simply a risk-shifting credit arrangement between patentee and licensee. The arrangement can be no more than that, because the patentee at that time has nothing else to sell.” Harold See & Frank M. Caprio, “The Trouble with Brulotte: the Patent Royalty Term and Patent Monopoly Extension,” 1990 Utah L. Rev. 813, 814, 851; to similar effect see Rochelle Cooper Dreyfuss, “Dethroning Lear: Licensee Estoppel and the Incentive to Innovate,” 72 Va. L. Rev. 677, 709-12 (1986). “[T]he Supreme Court refused to see that typically such post-expiration royalties merely amortize the price of using patented technology.” 10 Phillip E. Areeda et al., Antitrust Law �� 1782c2-c3, pp. 505-11 (1996); cf. Jahn v. 1-800-FLOWERS.com, Inc., 284 F.3d 807, 811-12 (7th Cir. 2002).

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