Contemporary off the presses simply hours in the past on April 22, 2026: “Who Could Sue: Patent Standing Points and Implications for the Life Sciences Business (Half II)” by Morrison Foerster powerhouse group Matthew Chivvis, Sumaiya Sharmeen, Evelyn Li-Jin Chang, and Maya Darrow. That is the explosive follow-up to Half I (dropped April 6), and it’s laser-focused on the hidden traps that may derail your whole patent enforcement recreation in life sciences.
Fast recap in case you missed Half I: Standing in patent instances isn’t only a formality – it’s constitutional (Article III injury-in-fact) plus statutory necessities below the Patent Act. Solely the patent proprietor or an unique licensee with “all substantial rights” can sue alone. Partial licensees or these with restricted exclusionary rights? You often want the proprietor joined. Naked licensees? No standing in any respect. And in life sciences? These guidelines hit tougher due to fixed licensing, spin-offs, college offers, and Bayh-Dole problems.
Now Half II takes it to the subsequent degree with real-world minefields which are blowing up proper now:
Subject-of-use licenses (the bread-and-butter of pharma offers for particular indications, territories, or therapies) can create large standing gaps in the event that they don’t hand over full exclusionary rights. Your licensee plaintiff may find yourself powerless even with the proprietor joined.
Complicated company buildings and task agreements are spawning “unexpected points” throughout enforcement. Patents bounce between universities, startups, massive pharma subsidiaries, and licensing companions continually – one sloppy division of rights and your go well with crumbles.
The most important bomb? Mid-litigation transfers of patent possession or exclusionary rights between entities whereas the case is already underway. The MoFo group warns this could create standing gaps, pressure dismissals, or slash accessible damages – misplaced income, affordable royalties, the works. One improper transfer and full classes of infringement claims vanish.
Backside-line recommendation straight from the article: “Firms ought to hold the division of patent rights between company entities in thoughts when implementing patents.” And crucially: “Firms ought to take into account the implications of transferring patent possession or exclusionary rights between subsidiaries whereas litigation is ongoing.”
In an period of large M&A, biosimilar wars, and aggressive patent enforcement in opposition to generics, standing isn’t some technical footnote – it’s a billion-dollar strategic weapon. Get it improper and your competitor retains promoting whereas your damages evaporate. Get it proper and also you lock down the safety your R&D funding deserves.
This two-part sequence is must-read gold for IP counsel, licensing groups, and anybody structuring offers in biotech or pharma. It’s not tutorial idea – these precise pitfalls are enjoying out in courtrooms at present.
What do YOU suppose? Have you ever run into standing points in a life sciences patent case? Are your licensing templates and company buildings up to date for mid-litigation switch dangers? Drop your real-world takes within the feedback – particularly in case you’re in-house at a biotech or dealing with these offers. We learn each single one.
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