Rewarding Pharmaceutical Innovation for Being Innovative

A Summary of the Pharmaceutical Patent System And an Amendment to the Patent Act to Negate “Evergreening” and “Patent Thickets”

  • Dimitris Logothetis


This article proposes an amendment to the Patent Act that discourages anti-competitive patent practices in the pharmaceutical industry without interfering with follow-on innovation. It begins by introducing the pharmaceutical industry and its reliance on patents. It then explores pharmaceutical follow-on innovations that amount to “secondary patents” and the arising issues of “evergreening” and “patent thickets.” While follow-on innovation is imperative to public health and a natural outcome of pharmaceutical innovation, the secondary patents essential to encourage such innovation are being used gratuitously, likely representing anti-competitive strategies. Next, this article analyzes comparative law that has addressed these anti-competitive concerns, the inadequacy of this comparative law, and advocates that patentability standards should not be heightened to combat anti-competitive patent strategy. Finally, the article analyzes Canadian case law on the doctrine of selection patents to draw inspiration for a Patent Act amendment designed to thwart anti-competitive patent practice without impairing genuine and beneficial follow-on innovation.