Patent Monetization - A Currency Of Knowledge Economy
Author: LawSphereX
Category: Intellectual Property
Published:
Updated:
PATENT MONETIZATION: A CURRENCY OF
KNOWLEDGE ECONOMY
Ravi Kiran, Meenakshi Chauhan & Kapil Arya, Council of Scientific and Industrial Research-Innovation Protection Unit (CSIR-IPU), Satsang Vihar Marg Block A, Qutab Institutional Area, New Delhi- 110016
ABSTRACT
The Patent monetization involves strategies like licensing, selling, or leveraging patents to transform idle intellectual property into valuable economic assets. The present article describes the types of licensing and its importance, especially when patents fail to generate scalable products or are not actively used. This also explores the technicalities of patent licensing from the perspectives of patentees, licensees, and governments. It provides insights to the global provisions embedded in trade agreements of intellectual property rights, historical background, and specific case laws pertinent to patent licensing, with a particular emphasis on provision related to licensing and pooling agreement.
This helps to understand that the role of patents in the knowledge economy is to provide exclusive rights granted to inventors which enables the commercialization through licensing or direct exploitation. This study addresses various monetization strategies including patent enforcement, licensing, manufacturing, patent pooling, mortgage, and selling. It details the nuances of each approach, particularly focusing on compulsory licensing as a mechanism to ensure public access to patented innovations that are not commercially viable. Keywords: Patent Monetization, Dormant Patents, Patent Licensing, Doha Declaration, Patent Pooling, Knowledge Economy, etc.
Introduction The patent provides intellectual property rights (IPR) to the holder that encourages innovation by allowing inventors to benefit financially from their creations. The term patent was first coined in the Republic of Venice in 1474 which has evolved significantly in the recent years. The TRIPS (Trade-Related Aspects of Intellectual Property Rights), adopted in 1994 and enforced from 1995, introduced global standards for intellectual property, including product patents.[1] In response to public health concerns, the Doha Ministerial Conference in November
2001 resulted in the Doha Declaration, emphasizing that TRIPS should not prevent countries
from addressing public health needs. [2] Before the TRIPS agreement, India's patent system allowed for "process patents" rather than "product patents" for pharmaceuticals, enabling local manufacturers to produce cloned versions of patented medicines at lower costs, which significantly reduced drug prices in the market. [3] These trade aspects and the declaration (2001) led to World Trade Organisation decision of August 30, 2003, also known as the "Paragraph 6 System," which allowed countries to issue compulsory licenses and export medicines to address global health needs. [2,4] By 2006, TRIPS was amended to facilitate this export of medicines, further supporting global access to essential drugs.
[1,5] Over time, countries increasingly utilized these provisions, leading to updated rules in 2014 for more accurate reporting of patent commercialization through Form 27 as per Indian Patent system, reflecting the evolving role of patents in ensuring both local and global health needs are met. [6] In the modern knowledge economy, patents have become a critical asset, often regarded as a form of currency in the intellectual property landscape. [7] Nowadays, the Patents are granted for a period of 20 years which often become dormant if they are not effectively utilized or commercialized within the span of the three years tenure. Globally, the patenting culture not only incentivizes inventors but also fosters market competition and enhances quality of life through technological advancements.
Patent portfolio can be commercially capitalizes in two primary ways—through licensing or by directly utilizing the invention—many patents become dormant if not actively used. [8] The patent which become dormant with the time also represent a valuable opportunity for monetization, and helps to leverage these assets for maximizing their economic value. The patents can also generate revenue through licensing agreements, where involved parties pay royalties to use the patented technology. The licensing agreements unveils several types including exclusive, non-exclusive, sub license, cross-license, carrot license, stick license, voluntary license and compulsory license. [9]
The compulsory license is another type of licensing which ensures that the technology is accessible while providing the patent holder with compensation which came into light during
2001 in Doha Declaration. [2,10]
The declaration was issued in (2001, Qatar) response to concerns that provisions of IPR’s trade related aspect provisions might hinder access to medicines, especially under developed nations which are fighting with major health crises like HIV/AIDS, tuberculosis, and malaria. Soon after that in 2005, India amended its patent laws to comply with IPR’s trade related aspect agreement, with incorporation of provisions that align with the Doha Declaration, such as allowing for compulsory licensing and addressing issues of public health. [2,11] Key highlights of the Declaration in the context of India [10,11]: Ø The Doha Declaration (2001) emphasized balancing intellectual property rights (IPR) with public health objectives, establishing a framework for using flexibilities like compulsory licensing to ensure affordable access to essential medicines. Ø In the landmark case of Natco Pharma v.
Bayer (2012), Natco Pharma used a compulsory license to produce a generic/cloned version of Bayer’s patented drug Nexavar, demonstrating India’s application of Doha Declaration principles to enhance drug affordability and accessibility. Ø Compulsory licensing allows nations to produce patented drugs without the patent holder’s consent during health emergencies or to manage drug costs. India has effectively used this mechanism, especially for treatments of HIV/AIDS and cancer, as supported by the Doha Declaration. Ø Nations can also import generic drugs from other nations at lower prices, even if this bypasses patent rights. This provision aligns with the Doha Declaration to ensure affordable medicines and protect public health.
Ø India has become a major global supplier of affordable generic medicines, leveraging IPR flexibilities endorsed by the Doha Declaration to support low-income nations with essential treatments.
Ø There is a call for technical and financial support for developing nations to implement IPR provisions effectively and strengthen health systems, ensuring access to medicines and the proper use of Doha Declaration flexibilities. Ø The WTO Amendment (2005) clarified rules for compulsory licensing, making it easier for countries without domestic manufacturing capacity to import generic drugs. This amendment built on the Doha Declaration to improve access to affordable medicines. Ø Ongoing debates continue about the effectiveness and implementation of IPR flexibilities, reflecting challenges in balancing IPR with public health needs despite the Doha Declaration and subsequent WTO amendments. Before the IPR’s trade related aspect agreement, India had a patent system that allowed for the broad use of "process patents" rather than "product patents" for pharmaceuticals.
This system enabled Indian pharmaceutical manufacturers to generate cloned versions of patented medicines, which significantly lowered the medicine’s cost. The Declaration has led to enhance production and availability of generic medicines, particularly in developing nations, by facilitating the use of compulsory licenses. This is crucial for addressing health needs in poorer regions where patented drugs may be prohibitively expensive. Methods: Before proceeding to any method disclosed herein a due diligence exercise is considered prerequisite process for each patent portfolio. IP portfolio’s durability and agility are checked by the process of the due diligence assessment report.
The due diligence assessment report includes multiple factors of the patent portfolio to have strength and weakness of the invention which displays the analysis of patent timelines such as remaining time of the invention, grant information of license, information related to the working of the invention at commercial level, etc. This exercise requires expertise at analyses of business risk factor, patent portfolio and innovation interpretation level. However, start-ups, small player, and individual’s patent portfolio is small in proportion to the large firms hence cost effective for small player. Therefore, It is considered to perform due diligence exercise before signing or entering to the licensing negotiations with various parties. [12] Patent Enforcement involves taking legal action against infringement to secure revenue and
protect patent value. [9,13] Patent Licensing offers several options including exclusive, non-exclusive, sublicensing, cross licensing, and compulsory licensing, each providing different pathways to commercialize patents and address issues such as market competition and public access. Manufacturing enables patent holders to produce and sell products directly, capitalizing on their patented technology. [14] Mortgage and Selling offer financial solutions by using patents as collateral or transferring ownership to achieve immediate economic benefits. [15] Patent Pooling aggregates patents to streamline licensing and reduce litigation costs, fostering collaboration and providing access to essential technologies. Additionally, this article examines the regulatory frameworks that influence these strategies, with a particular focus on patent laws in India and international standards.
By analysing these methods and their regulatory contexts, the paper aims to offer a comprehensive understanding of how dormant patents can be effectively monetized. This insight is intended to benefit patent holders, licensees, and other members in IPR Field. Figure: 1 The figure shows different paths involved in monetizing the patents
Patents licensing: Patent licensing is a legal arrangement where the patent holder grants permission to another party to use, produce, or sell a patented invention under specified conditions. This process allows the licensee to leverage the patented technology without infringing on intellectual property rights, while the patent holder benefits from licensing fees or royalties. Patent licensing is crucial in fostering innovation and collaboration, enabling the broader dissemination of technological advancements and balancing the interests of patent owners with public access to new products and technologies. [16] Different types of legal arrangements are available as follows: Exclusive License: In this type of licensing, the patent holder wishes to transfer of ownership to licensee. However, the title remains with the patent holder.
With this licensee incurs each and every aspect of responsibility associated with the patent. However, further extension of license to third party is prohibited in this case. Non-exclusive License: This type of license allows multiple licensees for the common patent and each licensee maintains the possession over it and subsequently, launches it to the commercial scale to exploit market. Sub Licenses: This type of license is between the licensee and third party. For instance, patent holder has granted a license to a person (licensee) with some rights to further extend the licensing process to another person (third person) to fetch the benefit from the market having leverage to produce or manufacture that product or reducing the transport cost, many other factors , etc. However, the profit share depends on the contract signed between primary licensee and third party.
Cross-License: This type of licensing is required to complete the product at market level. For instance, a pen is the final product which is to be placed at market however, patent for pen’s cap, refill, outer
body of pen, pen’s gripping area, and a writing surface is granted to different persons. In that scenario, all the patent holder of different elements come together and cross-license each other’s technology required to compete the product at market level. In that way, cross-licensing is considered to be contradictory to innovation and puts stop on competition. However, complete study is yet to be seen at all levels of development. Carrot License: Carrot License is marketing tactic for approaching inexperienced licensee where patent holder provides a list of benefits that could be achieved after obtaining a license from patent holder for patented technology. It is a marketing skill for convincing prospect licensee to sign a license agreement. Stick Licensing: In contrast to carrot licensing, stick licensing is way to compel infringer for licensing.
For instance, if prospective licensee is already using patented technology then patent holder may sue infringer or negotiate on own terms for licensing agreement. Moreover, license here act as remedy to avoid litigation threat. Voluntary Licensing: Voluntary licensing is considered as an act of benevolence towards the society from the end of patent holder. It depends on the patent holder’s capital need hence by using his discretion, patent holder may grant license to other parties either way of exclusion or non-exclusion for sales, manufacture, and/or import a pharmaceutical product. Licensee acts as an agent for the patent holder and may share royalty as per the terms set in the license agreement.
Compulsory License: Compulsory licensing comes into the picture when patent holder fails to make patented invention viable at commercial scale or it is the need of the public at large and at affordable price. Further, if patent holder is unwilling to grant any type of license or does not reach to mutual agreement then government may intervene and allow license to applicant, even against the will of the patent holder in lieu of royalties agreed between licensee and patent holder. Compulsory licensing is prevailing in the pharmaceutical sector as government is responsible
for affordable health related services. [6] After 2010, many developing countries began utilizing the flexibility offered by TRIPS to issue compulsory licenses for pharmaceuticals, resulting in more affordable medicines. The WTO's TRIPS Agreement was subsequently amended to include provisions for exporting medicines produced under compulsory licenses, further enhancing global access to essential drugs. In India, Sections 84, 85, and 86 of The Patent Act, 1970, govern the framework for compulsory licensing. Additionally, Form 27's filing for working of patent is required for every granted patent updated to submit with completion of every three financial years, improving the assessment of patent commercialization and practical use.
Indian patenting system also permits the third parties manufacturers to make/use products or process which are patented without the patent owner’s permission under specific conditions by granting compulsory license to the third parties manufacturer. It is done based on certain grounds mentioned in section 84 of the patent act, 1970. [6] Grant of compulsory license depends on the fulfilment of the following conditions: Ø Availability of the patented product/process to the public at a reasonably and affordable price. Ø Working of the patented product/process in India. Ø Weather Reasonable requirement of the public is fulfilled by the patented invention. Landmark Cases pertaining to compulsory license: The NATCO Pharmaceutical Limited v Bayer Corporation case exemplifies about the application for compulsory licensing under Indian patent act to address public health needs.
[17] In 2011, NATCO being an applicant before controller sought a compulsory license for drug Sorafenib Tosylate which was patented by Bayer (patent owner). Sorafenib Tosylate is helpful in curing the cancer patients. The Applicant, NATCO applied for compulsory license due to the high cost and limited availability of Sorafenib Tosylate in India. The CGPDTM granted the license in 2012, imposing a royalty of 6% on net sales (at present 7%). This decision, upheld by both the Intellectual Property Appellate Board (formerly existing Appellate Board) and the Delhi High Court, and set the precedents for the act of balancing between protection of rights of patent owner and need of public requirement of medicines for managing health issues. It
facilitated affordable access to essential medicines and set a significant precedent for future compulsory licensing cases in India. [17] In BDR Pharma International Pvt Ltd v Bristol-Myers Squibb Co, BDR Pharma being an applicant sought applied for a compulsory license for Dasatinib. [18] Dasatinib is also a cancer drug already passed the test of patentability and a patent was granted to Bristol-Myers Squibb. BDR argued that the drug was priced unreasonably high and was not sufficiently available in India, impacting public health. The Indian Patent Office granted the compulsory license, allowing BDR to produce and market the same cloned drug having active ingredients as the innovator drug but differing in inactive ingredients of Dasatinib at a lower cost.
The decision highlighted the balanced approach between patent rights and public health needs, demonstrating how Indian patent law can address affordability and access issues in the pharmaceutical sector. In Lee Pharma Ltd. v. AstraZeneca AB, Lee Pharma contested AstraZeneca’s patent for the anti-cancer drug Nexium (Esomeprazole), arguing that the patent was invalid due to absence of novel features and inventive steps as these are requirements of the patentability. [19] Lee Pharma sought to produce a salt of the drug, claiming AstraZeneca's patent was improperly granted. The Delhi High Court ruled in favor of AstraZeneca, upholding the validity of the patent. The court found that the patent met the criteria for novelty and inventive step, reinforcing the strength of pharmaceutical patents and the importance of rigorous patent examination standards.
Thereby setting the example for stringent examination criteria of novelty and inventive step and unnecessary steps taken towards invalidating the granted patent to manufacture or establish generic drug manufacturing system. Patent Pool A patent pool is a collaborative arrangement where multiple patent owners agree to sign license
agreement for their patents to each other and/or to third parties as a single entity. This collective licensing approach facilitates access to a broader range of technologies, reduces transaction costs, and mitigates patent infringement disputes.[20] Patent pools are often used in industries with complex technologies, such as telecommunications or pharmaceuticals, to streamline innovation and enhance competition. By pooling patents, participants can avoid individual negotiations and benefit from a more straightforward licensing process.
Earlier, patent pools have been predominantly limited to the USA and Europe. However, with the emergence of technological innovation, Asian companies have recently increased their involvement in the patent pools. [21] In India, the relevant provisions concerning patent pools can be found primarily in the Indian patents law. However, it does not specifically mention "patent pools," several sections are relevant to their operation, particularly regarding licensing and anti-competitive practices. Key sections include: Patent Pool Licensing section 140 provides general authority for licensing, which could be applied to the context of patent pools. [6] The authority responsible for issuing directions related to the patenting and licensing process has jurisdiction to issue instructions to patent owners and other parties involved in the patenting process.
These instructions can include requirements related to the licensing of patents, ensuring compliance with legal and regulatory provisions. The instructions are meant to address issues concerning the public interest and the effective utilization of patents. This section allows the authority to take necessary actions to ensure that the functioning of patents, including those involved in a patent pool, aligns with the broader public interest and legal standards. Substitute Patents and Complementary Patents under patent pool Substitute Patents: Patents which covers alternative invention or innovation and does not block each other are identified as Substitute patents. Hence, substitute patents can be enforced at the same time by patent holder without infringing the other patent thereby competing in nature.
Complementary patents: Plurality of patents which may assist/used in producing complete and finalized technology/innovation and does not fall under the category of substitute patents. Thus, to raise the bar in terms of technology production, complementary patents are used in combination for final production process. Therefore, desired end product may be produced via entering into the licensing process of the complementary patents required to reach at end result. For instance, two patents which are infringing on each other are considered to be complementary patents. Hence, patent licensing is mandatory process to generate end desired product out of the complementary patents and to avoid the patent infringing litigation threat. Further, complementary patents can be characterized as mutually blocking patents, as
individual patent can’t generate end desired product without culminating the specific component disclosed in other patent therefore requires cross licensing of each other patent. Substitute patents are competitive in nature hence ideally should not be included in the patent pool portfolio. However, complementary patent are non-competitive in nature as their claims blocking each other’s patented technology to come into the market for consumption. Hence, complementary patents should be entered into licensing agreement. Essential and Non-Essential Patents A pool of patent specifically includes essential patents as they are non-competitive in nature
and complementary to the standard of the technical requirement. However, Non-essential patents are competitive in nature and contain substitute or alternate technology therefore not included in patent pool. Standardization and Patent Pools A technical standard is a set of norms or rules established through consensus among various
groups to guide the performance of specific tasks, incorporating optimized methods and processes. When patents relevant to a standard are owned by multiple entities, a patent pool can facilitate standardization by consolidating these patents. This arrangement allows participating patent holders to share their patents within the pool, provides a standard license to non-members, and distributes licensing fees among the pool members according to an agreement. [20] Technical standards promote uniform criteria and practices, encouraging widespread adoption of technology. However, they can also pose barriers to entry due to the complexity of switching between standards. Patent pools address this challenge by consolidating patents from multiple holders, offering a standardized licensing approach, and fairly distributing licensing revenues.
Despite scrutiny from competition authorities, most patent pools, such as those for MPEG and DVD standards, have been deemed compliant with antitrust regulations by the US Department of Justice. In the pharmaceutical sector, organizations like the MPP (Medicines Patent Pool), funded by the US, manage essential patent licensing as patent pool organizations. Similarly, various patent pools streamline licensing across different technologies: HEVC Advanced manages the
HEVC/H.265 video compression standard; MPEG LA oversees multiple MPEG and related standards; One-Blue; Via Licensing covers a broad range of technologies including Advanced Audio Coding (AAC) and LTE; Sisvel focuses on LTE/LTE-A and SAE standards; and Avanci manages patents for various generations of mobile technology, including eCall and 4G. Pre-requisite to license under patent pool A standard-essential patent (SEP) is one that is crucial for implementing a particular industry
standard. The holder of an SEP is typically required to license the technology under F/RAND terms that are Fair in terms, Reasonable in terms, and in terms of Non Discriminatory in nature—or RAND terms, which satisfies Reasonable and Non-Discriminatory measures. This framework aims to entertain both patent owners and licensees: while patent owners can generate significant revenue from licensing their SEPs, the F/RAND requirements ensure that licensees have access to these essential technologies on fair and non-discriminatory terms. Thus, the system strives to achieve a decent equilibrium between financial interests of patent owner and benefits shared to licensees who need to implement the standardized technology.
Effects on Competition Patent pools can offer several pro-competitive benefits by enhancing efficiency, reducing litigation and transaction costs, and clearing patent blockages. By consolidating complementary patents, patent pools facilitate their optimal use and prevent situations where firms block each other’s patents, thereby advancing product development. They also reduce litigation by collectively resolving disputes, which is particularly advantageous for smaller firms. Additionally, patent pools streamline licensing through a single agreement, mitigating transaction costs and eliminating the inefficiencies of royalty stacking, where multiple patents are needed for a single product. Pools can also address mutual patent blockages, accelerating technological progress. [20,21] However, patent pools can raise competitive concerns.
They may distort competition if they consist of substitute patents, potentially eliminating rivalry between these patents. Restrictive licensing practices and mandatory grant-backs within pools can lead to higher prices and hinder competition. Grant-backs might also diminish incentives for future innovation by requiring members to share improvements without compensation. Furthermore, patent pools might facilitate collusion by creating a forum for sharing sensitive competitive information. Article
40 of the IPR’s trade related aspect provides a framework for regulating anti-competitive
practices in licensing, including exclusive grant-back provisions. The MPP stands for Medicines Patent Pool, is a global population health initiative established in 2010 to enhance accessibility to essential medicines by facilitating the manufacture capabilities to produce affordable generic versions. It operates by aggregating patents from various pharmaceutical companies and licensing them to generic manufacturers, especially in low and middle income nations. This approach aims to reduce drug prices and improve availability, particularly for treatments related to HIV, hepatitis C, and tuberculosis. The MPP collaborates and bargain with patent owners to include patented technology under the pool and then grants licenses to manufacturers who can produce and distribute generics.
It also works to encourage innovation by providing a platform for collaboration between patent holders, researchers, and generic producers. By simplifying the licensing process and ensuring broad access to medicines, the MPP helps address significant public health challenges and supports global health equity. Since its inception, the MPP has successfully negotiated licenses for numerous essential drugs and has been instrumental in increasing access to life-saving treatments in resource-limited settings. Two distinct initiatives focus on improving global health but from different perspectives: One initiative is dedicated to enhancing access to essential drugs, particularly in lower and middle-income nations. It works by negotiating patent licenses and collaborating with pharmaceutical manufacturers to produce and distribute affordable cloned medicines.
The goal is to reduce medication costs and address availability issues by navigating patent barriers and advocating for policies that promote fair access. This effort aims to bridge gaps in healthcare access and improve public health outcomes. The other initiative operates with a communitycentric approach to health improvement. It focuses on providing health education, preventive care, and resources to underserved populations. Through outreach programs, workshops, and partnerships with local health providers, it empowers communities with knowledge and tools for effective health management. By addressing common health issues and promoting preventive care, this effort strives to enhance community health and resilience.
Conclusion: The landscape of patent monetization and licensing is a multifaceted arena that plays a critical role in the modern knowledge economy. Patent, though valuable assets, often become dormant if not actively utilized or commercialized. This study highlights several strategies for converting dormant patents into economic assets, emphasizing the importance of effective licensing mechanisms. Patent enforcement, licensing, manufacturing, pooling, mortgage, and selling each offer distinct pathways for monetization, with compulsory licensing standing out as a crucial tool to balance IPR’s legal formalities and domestic life saving needs.
The Declaration held in Doha for trade’s in IPR and concerned domestic need in pharmaceutical for managing domestic livelihood underscores the right of nations to use IPR’s trade related aspect agreement flexibilities, including mandatory licensing, to ensure affordable accessibility to essential lifesaving medicines. India's approach, through landmark cases like Natco Pharma v. Bayer and BDR Pharmaceuticals v. Bristol-Myers Squibb, illustrates how these flexibilities can be employed to address public health concerns while maintaining compliance with international standards. Patent pools emerge as a significant mechanism for pooling complementary patents to streamline licensing and reduce litigation costs. These pools facilitate standardization and foster innovation by providing access to essential technologies under FRAND’s terms.
The Medicines Patent Pool (MPP) serves as a notable example of how patent pools can enhance access to life-saving medicines in low- and middle-income nations, demonstrating their impact on global health equity. Regulatory frameworks, including India's Patents Act and competition laws, play a vital role in ensuring that patent pools and licensing practices align with public interest and competition norms. By navigating these frameworks effectively, stakeholders can harness the potential of dormant patents while contributing to broader societal benefits. Hence, understanding and leveraging patent monetization strategies, alongside navigating international agreements and national regulations, can transform dormant patents into valuable economic assets.
This approach not only enhances the value of intellectual property but also supports domestic needs for public health and innovation, underscoring integral role of patents as the knowledge economy.
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