I. INTRODUCTION "To promote the Progress of Science and useful Arts," the U.S. Constitution authorizes Congress to grant inventors the right to exclusive use and control of their inventions. (1) However, inventors only have the right to exclude others from using a patented invention--and then only when the patent is valid. unfortunately, many recently challenged patents were found to be enforced beyond their bounds by eager patentees, and a significant number did not hold up under close scrutiny and were declared invalid. (2) While defendants faced with an infringement action can contest the scope and validity of the asserted patent, third parties lack standing to challenge the patent's validity, even though in many cases third parties bear some costs if the litigation settles. (3) one example is reverse settlements in pharmaceutical patent litigation, (4) where third parties, such as insurance companies and state medical programs, have a strong interest in preventing coordination between drug companies. (5) Without standing to challenge the patent directly, affected third parties often must resort to the antitrust laws to prevent collusion between settling parties.
