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”
Abstract
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.
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