The Troll Toll: A Case For Integrating The Valuation Principles of U.C.C. § 2-305 Into Licensing Agreements

19 Wake Forest J. Bus. & Intell. Prop. L. 225

When people think of “price-gouging” in terms of medical products,
most would first think of unseemly distributors or manufacturers
increasing the prices consumers must pay for medications, such as
Martin Shkreli1 or Heather Bresch. But what about price-gouging
against the distributors? Patent trolls, also known as “non-practicing
entities,” are those who own patents but do not practice them, and may
own incredibly important patents upon which a number of innovations
in the near future may infringe. The medical community is particularly
susceptible to price-gouging from patent trolls, because of the
community’s increasing use of the patent system; the community’s
position as an intermediary to the public; and the community’s
necessary risk-taking during research and development of medical
devices. To remedy this susceptibility, this article proposes a new
model for transacting medical patent licenses and shifts the focus onto
the contracting, rather than the patents themselves.