The shortage of key personnel in cutting-edge technology industries has been a bane to technology companies that for the last decade have found themselves relying more and more on imported brainpower. This problem has particularly affected smaller companies that are less able to pay the highest salaries in order to attract employees. U.S. companies often find themselves turning to Europe, India and the Far East to import key technical staff. To hire a foreign national, appropriate government approval, in the form of an H-1B visa, is required. However, H-1B visas last only 3 years and can be renewed for only one additional three-year term. Thus, these employees often return to their home countries once their visas expire.

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The bear market, the uncertain economy and pre-war jitters caused companies to seek to increase their cash reserves and to look aggressively for opportunities to increase their revenue. Certain advanced financial strategies recently used in financial markets may offer companies the opportunity to do just that. In particular, in-house patent attorneys and consultants should seriously consider recommending patent monetization as an alternative to standard patent licensing. The emerging monetization strategies that provide alternatives to licensing are founded on the growing appreciation that patents are actually an asset class in a financial sense as compared to a mere asset from an accounting sense. An asset class, as distinct from an asset, comprises a collection of assets that have in common systematic or macroeconomic drivers of price and risk.

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The Federal Circuit ruled that a district court properly performed the 'gatekeeping' role required of it by the U.S. Supreme Court in <i>Daubert v. Merrell Dow Pharmaceuticals, Inc.</i> and by Rule 702 of the Federal Rules of Evidence when it allowed the testimony of plaintiff's damages expert. <i>Micro Chemical, Inc. v. Lextron, Inc.</i> (Fed. Cir., Jan. 24, 2003). The plaintiff, Micro Chemical, alleged that defendants Lextron and Turnkey Computer Systems, Inc. infringed Micro Chemical's U.S. Patent No. 5,315,505 for a computerized medical records system for tracking health histories and medical treatments of livestock.

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The U.S. International Trade Commission (ITC)'s power to seal the country's borders against importation of products covered by U.S. patents makes this federal agency a powerful resource for patent holders. Still, many life sciences companies doing business in this country fail to utilize this quasi-judicial body to protect their pharmaceuticals, medical devices and other patented products.

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Entrenched in patent law is the principle that a challenge against a patent for anticipation or obviousness must be based on 'prior art,' and not on disclosure in the patent itself. Also entrenched in patent law is the principle that an otherwise known product cannot be patented merely because one discovers new and unobvious properties possessed by that product.

Foreign counterpart patents are an important tool in the hands of a company or inventor with a well thought out patenting strategy. In contrast, they can be an expensive, unproductive and time-consuming diversion for companies that address the matter of foreign filing protection in an ad hoc manner. The following analysis describes the problem in some detail, and then describes a structured approach to making foreign filing decisions that some companies are effectively deploying.

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