Most Minnesota Litigator readers are legal professionals. This post will be a “tell me something I don’t already know” post for them (I hope). But for many potential clients, these could be messages you need to hear:
Whether you CAN sue for something does NOT answer the question of whether you SHOULD.
By the same token, because you CAN get a patent for something does NOT mean you SHOULD.
Dr. Edward Earl Patterson, Dr. James R. Mickelson, Dr. Susan Taylor, and Katie Minor, RN, paid to get a patent for a “Method of Detecting Canine Exercise-Induced Collapse [a.k.a. ‘EIC’]” (a genetic vulnerability to which Labrador retrievers are particularly prone) (“the ‘297 Patent”) in 2012. It is not clear how much the patent owners paid to get the ‘297 patent but they might not re-coup their investment (though I could be wrong). (Maybe they have already gotten some folks to pay license fees for use of the patented invention? Maybe not any longer though….)
Because the ‘297 Patent is directed at a natural law and because it does not introduce any additional inventive concept beyond well-understood, routine, and conventional methods for determining whether the EIC mutation exists in a dog, the Court will find that the patent is invalid and will grant [an accused infringer’s] motion for partial summary judgment.
The bottom line is simple: a patent, like all intellectual property (a copyright, a trademark, and so on), indeed like all lawsuits brought for the purpose of getting money or other property from defendants, are assets to the owners of these legal rights but their value is uncertain and a matter of speculation.
Unscrupulous, ill-informed, or inexperienced lawyers might down-play the down-side risk when you ask “Can I sue for this?” or “Can I patent this?” Their judgment can be clouded by self-interest (or inexperience). Clients should never lose sight of the follow up questions of whether they should take the gamble of investing in intellectual property or undertaking litigation for profit.