Let’s just say, there is a major discovery of a gene linked to lung cancer. The inventors, currently researchers at a university lab, are seeking a first round of funding to spin out a new company and support them through the next stage of development and FDA filings. They hire patent counsel to assist in the preparation and filing of patent applications covering their invention and tap into an experienced M.B.A. to assist in the development and preparation of a focused business plan. The market and revenue potential is tremendous, as this discovery will solve an important need in the marketplace that will be subject to few price constraints.

The day finally arrives for the meeting with a venture fund, a large West Coast-based fund with a sweet spot in the company’s market sector, genetic-based diagnostics. The investor presentation flows without a hitch: first, an overview of the technology; next, presentation of the data; third, revenue potential; fourth, strength of the management team and finally, patent-pending technology. The representative of a venture capital asks, “Is your business relying on patent protection for the technology? Did you hear that the Southern District of New York issued a decision today in the Association for Molecular Pathology et al. v. U.S. Patent and Trademark Office et al. case?”

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