Standing to Assert a U.S. Patent: Do Infringement Actions Belong Solely to the 'Patentee'?

In a patent infringement case, the plaintiff must be the owner of valid right, title, and interest in the patent in suit, Maruzen Int'l Co. Ltd. v. Bridgeport Merchandise, Inc., 770 F. Supp. 155, 158 (S.D.N.Y. 1991), but has no standing if he has no proprietary interest in the patent. See Herman v. William Brooks Shoe Co., 35 U.S.P.Q.2d 1863, 1863 (S.D.N.Y. 1995).

'Bare' Licenses Insufficient

A common scenario in which the party seeking to initiate litigation may lack sufficient standing is when a licensee, or co-venturer, or distributor of a patent holder wishes to assert the patent to protect his market. The leading Supreme Court case of Waterman v. Mackenzie, 138 U.S. 252 (1891), established over a century ago that a “bare” licensee, as opposed to a patentee or assignee, does not have standing to sue for patent infringement. The Court in Waterman noted that a patentee could convey in writing: (1) the whole patent, comprising the exclusive right to make, use, and sell the invention; or (2) an undivided share of that right; or (3) the exclusive right within a specified part of the United States. Id. at 255. But it held that any assignment or transfer short of one of these three rights is a mere license “giving the licensee no title in the patent and no right to sue at law in his own name for an infringement.” Id. (emphasis added) The importance of the distinction between owner and licensee has been reaffirmed in modern cases. In Pfizer Inc. v. Elan Pharm. Res. Corp., 812 F. Supp. 1352, 1373 (D. Del. 1993), the court granted defendant's Rule 12(b)(6) motion to dismiss, noting that rights licensed by plaintiff Pfizer from the patentee were not sufficiently exclusive or otherwise adequate to establish ownership rights in Pfizer, and hence did not meet Waterman's requirements to establish standing. Because the patentee had not transferred substantially all its rights, the court found that Pfizer was “a licensee who cannot sue in its own name. Accordingly, Pfizer does not have standing to sue in its name for infringement. . . .” Id.

Courts have recognized that an exclusive license, giving the licensee the sole right to make, use and sell within the United States, may meet the Waterman test as “an undivided share of [the patent] right,” and thus may allow the exclusive licensee to stand in the shoes of the patentholder. Even if the license appears to be, or is denominated as, “exclusive,” it is beneficial for the would-be plaintiff to ensure that the patentee has not reserved any substantial rights within the United States. A similar assessment should be made with respect to any other relevant party. For instance, an “exclusive” distribution license might grant a wholesaler the sole right to use, sell and offer for sale the product within the United States, but not confer the right to make it, because the patentee is the manufacturer and OEM supplier of the product. If the patentee thus reserves part of the patent monopoly then, arguably, the distributor's nominally “exclusive” rights are insufficient to give him standing to sue.

But How Exclusive Is Exclusive?

In determining whether a license is sufficiently exclusive to serve as a basis for licensee's standing to sue, courts will closely examine the substance of the rights the licensor granted (and will note which, if any, he retained), taking into account the intention of the parties as manifested in the license documents. See Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3rd 1372, 1379 (Fed. Cir 2000). Recent case law confirms that this inquiry will require detailed and fact-specific inquiry into all the transactions involved in the chain of title for the patent before determining whether the party asserting the patent holds all (or substantially all) substantive rights in that patent. On one hand, mere qualification or retention of a minor financial or legal interest in the patents assigned or licensed by the assignor/licensor does not, automatically, negate a showing that all substantive rights have been transferred so as to confer standing on the recipient of the assignment or license. See, e.g., Biovail Labs., Inc. v. Torpharm, Inc., No. 01-C-9008, 2002 WL 31687610, at *2 (N.D. Ill. Nov. 26, 2002).

In Biovail v. Torpharm, the previous patentholder had agreed to “sell[ ], assign[ ], transfer[ ], convey[ ] and deliver to [Biovail] all of its legal right, title and interest in and to the Patents free and clear of all liens, claims, charges or encumbrances other than Permitted Encumbrances.” Id. Defendant argued that the reservation regarding “Permitted Encumbrances” represented an incomplete transfer of the previous patentholder's rights, and thus deprived Biovail of sufficient standing to sue as a sole plaintiff. Id. The court disagreed, accepting Biovail's argument that “Permitted Encumbrances” (a term not formally defined in the assignment) simply referred to a schedule of conditions ' preexisting third-party rights and liabilities imposed by law ' that Biovail acknowledged as being possible restrictions on the quantum of rights received under the assignment agreement. Id. at *2-3.

On the other hand, other recent district court decisions have dismissed infringement counts for lack of standing when the would-be plaintiff could not show substantial possession of all rights in the context of somewhat complex chain of title and license transactions. See, e.g., Monsanto Co. v. Aventis Cropscience SA, No. Civ. A.00-1013-SLR, 2002 WL 31204265, at *7 (D. Del. Sept. 30, 2002) (finding lack of standing when plaintiff asserted rights derived through joint license denominated by plaintiff as “co-exclusive” but deemed by the court to be mere non-exclusive license); Aspex Eyewear, Inc. v. E'Lite Optik, Inc., No. Civ. A. 398CV2996D, 2002 WL 1751381, at *4 (N.D. Tex. Apr. 4, 2002) (holding that “exclusive sublicensee” lacked standing to sue in its own name when the first licensing party in a chain of multiple ostensibly-exclusive licenses retained the right to take action against alleged infringers if the licensee/sublicensee did not do so within a given time period, thus negating the sublicensee's absolute ability to refrain from prosecuting alleged infringements).

Geographic vs. Field-of-Use Exclusivity

When examining a delegation of rights under a patent to determine whether it is sufficiently exclusive to confer standing, it may also be important to distinguish between agreements that divide patent rights among multiple geographic areas, on the one hand, and arrangements that divide patent rights among multiple recipients, or based upon parsing multiple claims of a single patent, or by defining multiple licensed fields-of-use of the patent, within a single geographic area. An assignee, or exclusive licensee, to all substantial rights under the patent within a specific territory, who thus is the only party capable of exercising any rights under the patent in that territory, will generally enjoy standing to sue, as discussed above. This is true even if multiple exclusive territorial licenses are granted (one for each of a number of distinct geographic regions within the United States). The Patent Code explicitly contemplates that assignments may be made for either “the whole or any specified part of the United States.” 35 U.S.C. ' 261.

However, while the “assignment-like” character of an exclusive license will be recognized even if the patent rights have been carved up amongst a multitude of discrete territories, the same is not necessarily true for licenses that purport to carve up the patent rights within a single territory among multiple licensees, or into multiple product categories or patent claim groups. This is because the patent assignment statute does not contemplate parsing the bundle of patent rights among multiple fields-of-use or among multiple “exclusive” licensees within one territory in the way it explicitly contemplates making multiple distinct, but exclusive, territorial delegations of the entire set of rights. See, e.g., In re Supernatural Foods, LLC, 268 B.R. 759, 799 (Bankr. M.D. La. 2001). The court in Supernatural Foods determined, in analyzing the nature of a patent-related agreement for purposes of bankruptcy distribution, that an exclusive license to the debtor to make and sell licensed products within the entire United States pursuant to patented processes for removing fat from food items was neither an assignment, nor a sufficiently-exclusive license to be treated as a quasi-assignment under the Waterman principles, when “licensed products” were defined in the relevant contract to include only certain snack foods and cheese, and the original patent assignee retained rights to use or license the patented process for other categories of food. The court also noted that the same public policy logic, as well as Supreme Court precedent, would prevent a patentee from purporting to “assign,” separately, the multiple claims within a single patent, even when those claims covered distinct aspects of the invention. See id. at 800 (citing Pope Mfg. Co. v. Gormully & Jeffery Mfg. Co., 144 U.S. 248, 250 (1892)). But cf. Fieldturf, Inc. v. Southwest Recreational Indus., Inc., 235 F. Supp.2d 708, 727-28 (E.D. Ky. 2002) (finding sufficient standing to sue based on a letter agreement through which the plaintiff claimed certain “exclusive” territorial license rights to an artificial turf system, even though the grant of rights to the “exclusive” licensee carved out and reserved to another party, products “related to the practice of the invention with regard to golf products.”).

Even if the licensee can show that his license is sufficiently “exclusive” to allow him to sue as a proxy for the true assignee, various precedents also hold (if not unanimously) that the licensee cannot sue alone, but rather must sue as a co-plaintiff of the “true owner” of the patent right. See Pfizer, 812 F. Supp. at 1375. The Pfizer court, for instance, found that patentee Bayer was a necessary party under Rule 19(a), without whom plaintiff/licensee Pfizer could not proceed, regardless of whether Pfizer's license was “exclusive.” “A patent owner has long been held to be an indispensable party in an enforcement action by its licensee.” Id. The court concluded that without Bayer's presence, full, fair and consistent adjudication of rights under the patent was not possible, and that this was an alternative ground for dismissing the suit.

Another common cause of confusion as to a patent's title and the related right to sue is defective or incomplete assignment of the invention. Frequently inventors leave their employers before executing an assignment, or become embroiled in disputes over ownership of the invention, or may not have been fully and properly identified in the application, assignment and declaration for the patent. In such circumstances, employers may naturally (but erroneously) proceed on the assumption that any invention by their employees must belong to the employer. This is not, in fact, the case under U.S. law, and thus such “trivial” defects in the assignment process/chain of title might hinder an employer's ability to assert the patent.

Avoid Dismissal

When the would-be plaintiff cannot show adequate standing to sue, a patent case is dismissible on several grounds, including: (1) Fed. R. Civ. P. 12(b)(6) (if the plaintiffs cannot truthfully aver that they are the owners of all right, title, and interest in the patent in suit); (2) Fed. R. Civ. P. 56 (if the plaintiffs make boilerplate allegations claiming full standing, but preliminary investigation or discovery reveals inadequacies in plaintiffs' chain of title or the exclusivity of their rights); or (c) Fed. R. Civ. P. 12(b)(7) for failure to join an indispensable party pursuant to Fed. R. Civ. P. 19 (if plaintiff may have an argument for being an exclusive licensee but has not joined the assignee in the action).

A defendant who asserts any of these defenses has a non-trivial chance of being taken seriously by the court, and such a defense may thwart a complainant at an early stage of litigation, given that a patent infringement action brought by a party that lacks sufficient ownership interest in the patent claims does not present a cognizable case or controversy under ' 281 of the Patent Code or under the Constitution. Some authority even exists for dismissing infringement claims in such instances 'with prejudice,' at least when the would-be plaintiff had an opportunity to submit proofs of sufficient standing and failed to rise to the challenge. Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir. 1998) (upholding dismissal with prejudice of infringement claims when alleged exclusive licensee had failed to rebut the possibility that the original patentholder retained the right in certain circumstances to grant additional licenses in the same area). This prospect of dismissal with prejudice raises the stakes for both plaintiff and defendant with respect to the standing issue, and therefore both parties should take the time to develop fully their evidence on this issue at an early stage of the case.

Thus, it is probably advisable when considering a possible patent assertion to make investigating the assignment documents, recordation, and other evidence of the chain of title or license among the very first steps the would-be plaintiff takes. Similarly, prudent defendants will also make early and searching inquiries into the strength of the alleged patentee's ownership rights in the patent upon learning of a possible assertion of the patent. The plaintiff should be concerned if there are evident gaps in the chain of title or license, or if there is significant doubt as to whether the rights of the purported assignee are sufficiently extensive to give rise to standing, as a court may even grant expedited preliminary discovery to allow further exploration of this matter, thus setting up a possible motion to dismiss if the missing links of the chain, or evidence of a sufficient grant of exclusive rights, do not materialize.

Jeffrey D. Sullivan is an associate in the Intellectual Property Department of Baker Botts, L.L.P. in New York City. His practice focuses on litigation, counseling and opinion work, and prosecution on patent and trademark matters for U.S. and international clients.

Who can sue on a U.S. patent? The answer is not always as clear-cut as one may think. A patent plaintiff or other party seeking to enforce rights in a U.S. patent portfolio will thus wish to ensure before commencing any such action that he enjoys sufficient legal standing with respect to the patents in his portfolio. Otherwise, a challenge to the plaintiff's legal standing may lead to unexpected chagrin for the would-be asserter of the patent and unlooked-for advantage on the part of the alleged infringer against whom the patent was to be asserted.

35 U.S.C. ' 281 provides that “a patentee shall have remedy by civil action for infringement of his patent.” (emphasis added) This section of the Patent Code provides the statutory basis for standing to sue in a patent case. It may be a source of some surprise, then, to consider how often in practice substantial questions arise regarding the putative patent plaintiff's threshold right to assert the patent at all, or how important it is (for both plaintiff and defendant) to determine at the outset of a possible patent infringement proceeding whether the plaintiff actually has adequate ownership interests in the patent he is purporting to assert.

How could anyone have the effrontery to attempt asserting a patent for which he was not the patentee? In most cases in which the “standing to sue” issue is raised, the problem is not that the putative plaintiff truly has no relation at all to the patent in suit, or that he has brashly filed a complaint based on the patent of a stranger. Rather, more commonly, the plaintiff has ' or believes he has ' some relation to or interest in the patent in suit, but his interest is not sufficient, or perfected, enough to satisfy the somewhat stringent statute- and case-based requirements that “the patentee” (or someone very like the patentee) is the only person entitled to complain of infringement of the patent's claims.

In a patent infringement case, the plaintiff must be the owner of valid right, title, and interest in the patent in suit, Maruzen Int'l Co. Ltd. v. Bridgeport Merchandise , Inc., 770 F. Supp. 155, 158 (S.D.N.Y. 1991), but has no standing if he has no proprietary interest in the patent. See Herman v. William Brooks Shoe Co., 35 U.S.P.Q.2d 1863, 1863 (S.D.N.Y. 1995).

'Bare' Licenses Insufficient

A common scenario in which the party seeking to initiate litigation may lack sufficient standing is when a licensee, or co-venturer, or distributor of a patent holder wishes to assert the patent to protect his market. The leading Supreme Court case of Waterman v. Mackenzie , 138 U.S. 252 (1891), established over a century ago that a “bare” licensee, as opposed to a patentee or assignee, does not have standing to sue for patent infringement. The Court in Waterman noted that a patentee could convey in writing: (1) the whole patent, comprising the exclusive right to make, use, and sell the invention; or (2) an undivided share of that right; or (3) the exclusive right within a specified part of the United States. Id. at 255. But it held that any assignment or transfer short of one of these three rights is a mere license “giving the licensee no title in the patent and no right to sue at law in his own name for an infringement.” Id. (emphasis added) The importance of the distinction between owner and licensee has been reaffirmed in modern cases. In Pfizer Inc. v. Elan Pharm. Res. Corp., 812 F. Supp. 1352, 1373 (D. Del. 1993), the court granted defendant's Rule 12(b)(6) motion to dismiss, noting that rights licensed by plaintiff Pfizer from the patentee were not sufficiently exclusive or otherwise adequate to establish ownership rights in Pfizer, and hence did not meet Waterman's requirements to establish standing. Because the patentee had not transferred substantially all its rights, the court found that Pfizer was “a licensee who cannot sue in its own name. Accordingly, Pfizer does not have standing to sue in its name for infringement. . . .” Id.

Courts have recognized that an exclusive license, giving the licensee the sole right to make, use and sell within the United States, may meet the Waterman test as “an undivided share of [the patent] right,” and thus may allow the exclusive licensee to stand in the shoes of the patentholder. Even if the license appears to be, or is denominated as, “exclusive,” it is beneficial for the would-be plaintiff to ensure that the patentee has not reserved any substantial rights within the United States. A similar assessment should be made with respect to any other relevant party. For instance, an “exclusive” distribution license might grant a wholesaler the sole right to use, sell and offer for sale the product within the United States, but not confer the right to make it, because the patentee is the manufacturer and OEM supplier of the product. If the patentee thus reserves part of the patent monopoly then, arguably, the distributor's nominally “exclusive” rights are insufficient to give him standing to sue.

But How Exclusive Is Exclusive?

In determining whether a license is sufficiently exclusive to serve as a basis for licensee's standing to sue, courts will closely examine the substance of the rights the licensor granted (and will note which, if any, he retained), taking into account the intention of the parties as manifested in the license documents. See Prima Tek II, L.L.C. v. A-Roo Co., 222 F.3rd 1372, 1379 (Fed. Cir 2000). Recent case law confirms that this inquiry will require detailed and fact-specific inquiry into all the transactions involved in the chain of title for the patent before determining whether the party asserting the patent holds all (or substantially all) substantive rights in that patent. On one hand, mere qualification or retention of a minor financial or legal interest in the patents assigned or licensed by the assignor/licensor does not, automatically, negate a showing that all substantive rights have been transferred so as to confer standing on the recipient of the assignment or license. See, e.g., Biovail Labs., Inc. v. Torpharm, Inc., No. 01-C-9008, 2002 WL 31687610, at *2 (N.D. Ill. Nov. 26, 2002).

In Biovail v. Torpharm, the previous patentholder had agreed to “sell[ ], assign[ ], transfer[ ], convey[ ] and deliver to [Biovail] all of its legal right, title and interest in and to the Patents free and clear of all liens, claims, charges or encumbrances other than Permitted Encumbrances.” Id. Defendant argued that the reservation regarding “Permitted Encumbrances” represented an incomplete transfer of the previous patentholder's rights, and thus deprived Biovail of sufficient standing to sue as a sole plaintiff. Id. The court disagreed, accepting Biovail's argument that “Permitted Encumbrances” (a term not formally defined in the assignment) simply referred to a schedule of conditions ' preexisting third-party rights and liabilities imposed by law ' that Biovail acknowledged as being possible restrictions on the quantum of rights received under the assignment agreement. Id. at *2-3.

On the other hand, other recent district court decisions have dismissed infringement counts for lack of standing when the would-be plaintiff could not show substantial possession of all rights in the context of somewhat complex chain of title and license transactions. See, e.g., Monsanto Co. v. Aventis Cropscience SA, No. Civ. A.00-1013-SLR, 2002 WL 31204265, at *7 (D. Del. Sept. 30, 2002) (finding lack of standing when plaintiff asserted rights derived through joint license denominated by plaintiff as “co-exclusive” but deemed by the court to be mere non-exclusive license); Aspex Eyewear, Inc. v. E'Lite Optik, Inc., No. Civ. A. 398CV2996D, 2002 WL 1751381, at *4 (N.D. Tex. Apr. 4, 2002) (holding that “exclusive sublicensee” lacked standing to sue in its own name when the first licensing party in a chain of multiple ostensibly-exclusive licenses retained the right to take action against alleged infringers if the licensee/sublicensee did not do so within a given time period, thus negating the sublicensee's absolute ability to refrain from prosecuting alleged infringements).

Geographic vs. Field-of-Use Exclusivity

When examining a delegation of rights under a patent to determine whether it is sufficiently exclusive to confer standing, it may also be important to distinguish between agreements that divide patent rights among multiple geographic areas, on the one hand, and arrangements that divide patent rights among multiple recipients, or based upon parsing multiple claims of a single patent, or by defining multiple licensed fields-of-use of the patent, within a single geographic area. An assignee, or exclusive licensee, to all substantial rights under the patent within a specific territory, who thus is the only party capable of exercising any rights under the patent in that territory, will generally enjoy standing to sue, as discussed above. This is true even if multiple exclusive territorial licenses are granted (one for each of a number of distinct geographic regions within the United States). The Patent Code explicitly contemplates that assignments may be made for either “the whole or any specified part of the United States.” 35 U.S.C. ' 261.

However, while the “assignment-like” character of an exclusive license will be recognized even if the patent rights have been carved up amongst a multitude of discrete territories, the same is not necessarily true for licenses that purport to carve up the patent rights within a single territory among multiple licensees, or into multiple product categories or patent claim groups. This is because the patent assignment statute does not contemplate parsing the bundle of patent rights among multiple fields-of-use or among multiple “exclusive” licensees within one territory in the way it explicitly contemplates making multiple distinct, but exclusive, territorial delegations of the entire set of rights. See, e.g., In re Supernatural Foods, LLC, 268 B.R. 759, 799 (Bankr. M.D. La. 2001). The court in Supernatural Foods determined, in analyzing the nature of a patent-related agreement for purposes of bankruptcy distribution, that an exclusive license to the debtor to make and sell licensed products within the entire United States pursuant to patented processes for removing fat from food items was neither an assignment, nor a sufficiently-exclusive license to be treated as a quasi-assignment under the Waterman principles, when “licensed products” were defined in the relevant contract to include only certain snack foods and cheese, and the original patent assignee retained rights to use or license the patented process for other categories of food. The court also noted that the same public policy logic, as well as Supreme Court precedent, would prevent a patentee from purporting to “assign,” separately, the multiple claims within a single patent, even when those claims covered distinct aspects of the invention. See id. at 800 (citing Pope Mfg. Co. v. Gormully & Jeffery Mfg. Co. , 144 U.S. 248, 250 (1892)). But cf. Fieldturf, Inc. v. Southwest Recreational Indus., Inc., 235 F. Supp.2d 708, 727-28 (E.D. Ky. 2002) (finding sufficient standing to sue based on a letter agreement through which the plaintiff claimed certain “exclusive” territorial license rights to an artificial turf system, even though the grant of rights to the “exclusive” licensee carved out and reserved to another party, products “related to the practice of the invention with regard to golf products.”).

Even if the licensee can show that his license is sufficiently “exclusive” to allow him to sue as a proxy for the true assignee, various precedents also hold (if not unanimously) that the licensee cannot sue alone, but rather must sue as a co-plaintiff of the “true owner” of the patent right. See Pfizer, 812 F. Supp. at 1375. The Pfizer court, for instance, found that patentee Bayer was a necessary party under Rule 19(a), without whom plaintiff/licensee Pfizer could not proceed, regardless of whether Pfizer's license was “exclusive.” “A patent owner has long been held to be an indispensable party in an enforcement action by its licensee.” Id. The court concluded that without Bayer's presence, full, fair and consistent adjudication of rights under the patent was not possible, and that this was an alternative ground for dismissing the suit.

Another common cause of confusion as to a patent's title and the related right to sue is defective or incomplete assignment of the invention. Frequently inventors leave their employers before executing an assignment, or become embroiled in disputes over ownership of the invention, or may not have been fully and properly identified in the application, assignment and declaration for the patent. In such circumstances, employers may naturally (but erroneously) proceed on the assumption that any invention by their employees must belong to the employer. This is not, in fact, the case under U.S. law, and thus such “trivial” defects in the assignment process/chain of title might hinder an employer's ability to assert the patent.

Avoid Dismissal

When the would-be plaintiff cannot show adequate standing to sue, a patent case is dismissible on several grounds, including: (1) Fed. R. Civ. P. 12(b)(6) (if the plaintiffs cannot truthfully aver that they are the owners of all right, title, and interest in the patent in suit); (2) Fed. R. Civ. P. 56 (if the plaintiffs make boilerplate allegations claiming full standing, but preliminary investigation or discovery reveals inadequacies in plaintiffs' chain of title or the exclusivity of their rights); or (c) Fed. R. Civ. P. 12(b)(7) for failure to join an indispensable party pursuant to Fed. R. Civ. P. 19 (if plaintiff may have an argument for being an exclusive licensee but has not joined the assignee in the action).

A defendant who asserts any of these defenses has a non-trivial chance of being taken seriously by the court, and such a defense may thwart a complainant at an early stage of litigation, given that a patent infringement action brought by a party that lacks sufficient ownership interest in the patent claims does not present a cognizable case or controversy under ' 281 of the Patent Code or under the Constitution. Some authority even exists for dismissing infringement claims in such instances 'with prejudice,' at least when the would-be plaintiff had an opportunity to submit proofs of sufficient standing and failed to rise to the challenge. Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir. 1998) (upholding dismissal with prejudice of infringement claims when alleged exclusive licensee had failed to rebut the possibility that the original patentholder retained the right in certain circumstances to grant additional licenses in the same area). This prospect of dismissal with prejudice raises the stakes for both plaintiff and defendant with respect to the standing issue, and therefore both parties should take the time to develop fully their evidence on this issue at an early stage of the case.

Thus, it is probably advisable when considering a possible patent assertion to make investigating the assignment documents, recordation, and other evidence of the chain of title or license among the very first steps the would-be plaintiff takes. Similarly, prudent defendants will also make early and searching inquiries into the strength of the alleged patentee's ownership rights in the patent upon learning of a possible assertion of the patent. The plaintiff should be concerned if there are evident gaps in the chain of title or license, or if there is significant doubt as to whether the rights of the purported assignee are sufficiently extensive to give rise to standing, as a court may even grant expedited preliminary discovery to allow further exploration of this matter, thus setting up a possible motion to dismiss if the missing links of the chain, or evidence of a sufficient grant of exclusive rights, do not materialize.

Jeffrey D. Sullivan is an associate in the Intellectual Property Department of Baker Botts, L.L.P. in New York City. His practice focuses on litigation, counseling and opinion work, and prosecution on patent and trademark matters for U.S. and international clients.