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« Court Report | Main | Primer on Global and IP5 Patent Prosecution Highway Pilot Programs »

May 04, 2015


Very interesting. Thanks for sharing that.

There is no greater and more compelling testimony to the importance of the patent system to the pharmaceutical industry. This fact pattern has existed to my personal knowledge for over 40 years, and in fact existed long before I entered our profession.

There is now a legal fashion for trying to keep areas of research free for all to enter. However, that merely produces a variant of the phenomenon that economists call "the tragedy of the commons." If technology is free for all to use, but requires great investment to meet regulatory standards and launch costs, then nobody will invest. Research will not be encouraged but instead will be stifled, to the great loss of mankind.

The legal fashion that you refer to appears to be a US Supreme Court edict applicable across the board.

It appears (per the USSC at least), that no art field - including pharma - gets a "free pass."

In a certain context (actual possession at time of filing), they already get "special treatment."

Let me also add a counter-intuitive argument against the "we must preserve the expensive system" of pharmaceutical development with an over-weaning application of "but for" rationale of providing patent protection:

It can be argued that where the need to develop a more cost effective manner of development is ameliorated (as in, don't worry about the costs - you can use the patent system to recover those direct AND INDIRECT [read that as failed drugs] costs through the monopoly power of the patent), the requisite motivation for innovating in the drug development system ITSELF not only NOT encouraged but instead is stifled, to the great (and enduring loss) of mankind of a inappropriate, costly, and time consuming development system.

Spare the rod...

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