Oct. 8, 2026, 4:00 AM CDT Lauren Castle | Correspondent
Dr. Omid Farokhzad and his fellow researchers worked to identify specific proteins functioning as biomarkers for diseases while completing his residency at Brigham and Women’s Hospital Inc. Harvard Medical School’s teaching hospital now finds itself fighting off foreign rivals from infringing its patented technology.
Yet BWH has the advantage of jointly pursuing patent litigation in Illinois federal court and a complaint before the US International Trade Commission alongside Seer Inc., the biotech firm that Farokhzad co-founded after he left the hospital’s staff.
They’re now waiting to see whether the trade commission will block Chinese firm Nanomics Biotechnology Co. from importing its proteomics kits into the US. The rival gave up its right to fight Seer’s and BWH’s allegations after it refused in September to participate in the investigation.
Hospitals don’t often pursue intellectual property litigation alone, and shouldn’t unless they have released products into the market, attorneys say.
Hospitals encourage researchers to find new treatments and diagnostic methods. But developing those innovations into products, placing them into the market, and enforcing their IP rights can be tough without the help of biotech firms that have the resources to do so, said Hemant Gupta of Epstein Becker & Green PC.
Medical centers already juggle sponsoring critical research with budgetary constraints and the rising cost of patient treatment, making the pursuit of IP litigation a daunting task. Public institutions have the extra layer of having to follow orders from state or local governments.
And hospitals can have additional challenges if they’re pursuing that litigation on their own, including high costs, sovereign immunity issues, and defenses from the alleged infringer that can ring differently in the medical context — including whether blocking the product from US markets would harm the public.
Research and development can look different in healthcare compared to other industries because of when medical institutions can benefit from the market, said Raymond L. Panneton of Shackelford McKinley & Norton LLP.
The Texas attorney said although a patent typically lasts about 20 years before expiring, a healthcare entity may need to wait 10 years from the start of development to the end of the Food and Drug Administration approval process to benefit from its IP.
“The amount of upfront capital, whether it be human capital or financial capital that you have to put up before you even get a market is extensive,”
“The amount of upfront capital, whether it be human capital or financial capital that you have to put up before you even get a market is extensive,” Panneton said. “And so, by partnering with biotech, they’re getting an immediate access to funds and staff.”
Unique Challenges, Rewards
University hospitals, especially public institutions, have significant limitations on what they can do with their funds, said Leisa Talbert Peschel of Jackson Walker LLP. That includes government designations for what can be spent on research and patient care, she said.
“It is rarely a good idea for a university system to pursue patent litigation on its own because they will not be making a product, and it’s very expensive,” Peschel said.
Some public hospitals also may have sovereign immunity, and therefore don’t want to destroy that immunity by initiating litigation, she said.
Biotech companies not only are better suited to fund litigation, they often can more easily show they’ve been damaged by the alleged infringer, Gupta said.
These types of partnerships can be particularly helpful before the ITC, where biotech firms often pursue a dual approach to protecting IP alongside suing in federal district court, he said. The commission doesn’t award damages, but can block imports of infringing products.
Gupta said biotech firms can show that they have products developed in the US that are being harmed by imports of infringing products, compared to a hospital that may not have anything on the market yet.
Like Nanomics Biotechnology, it’s not uncommon for respondents, especially smaller companies, not to want to participate in a trade investigation, said Adam Kaufmann of Barnes & Thornburg LLP. Some may enter into a consent agreement not to import the products, which could lead to a fee of up to $100,000, or twice the domestic value of the products entered, per day, he said.
But for those that do fight back, one possible defense is requesting that the commission consider whether the import ban would be against the public interest, Kaufmann said.
The defense historically isn’t successful, but would need more careful consideration in the hospital and healthcare context, he said.
“The few instances where public interest has prevailed as a defense have been in cases of medical equipment or medical technology where if the alleged infringing products were excluded, there was no alternative to meet the need,” Kaufmann said.
Making Partnerships Work
Despite their advantages, Panneton advises clients to consider several things when entering into partnerships.
Those considerations include complying with FDA regulations, business associate agreements, confidentiality terms, data security, IP ownership, the return on investment, and whether the hospital and biotech firm could compete in the future, he said.
Gupta, himself a former cancer researcher at a hospital, said partnerships between hospitals and biotech firms can be both beneficial and complex.
Well-crafted agreements should consider pitfalls, like the hospital’s reputational damage if the product is hit with infringement claims.
“All of those become very important questions that have to be addressed on the front end,” Gupta said. “Because we often also see disputes between the hospital and the biotech company when license agreements go wrong.”
BWH and Seer’s partnership may soon pay off, as they’re expecting a decision from the ITC by the end of the year. Their district court case is on hold pending a resolution of the ITC case.
Although the partnership “represents more than the successful licensing and commercialization of academic intellectual property,” that IP “remains central to Seer’s leadership position,” Seer’s VP of Legal George Fox said in a statement.
Filing in the ITC can be “smart work” because biotech companies are willing to protect their product even if there’s no immediate return on investment via monetary damages, Panneton said.
“They got more money than God, so they’re willing to throw that at litigation,” he said.
