No-Innovation Patenting

Brand name drug companies often attempt to bury competition from generic and biosimilar drugs indefinitely by finding ways to re-package existing inventions in later patents. 

These later patents are often not innovative, meaning they are likely invalid. Allergan’s Restasis patents illustrate this phenomenon as well. Allergan was able to obtain new patents on its drug by making unfounded allegations that the patents were innovative.

“The essence of the matter is this: Allergan purports to have sold the patents to the Tribe, but in reality, it has paid the Tribe to allow Allergan to purchase—or perhaps more precisely, to rent—the Tribe’s sovereign immunity in order to defeat the pending IPR proceedings in the (US Patent and Trademark Office) PTO…”

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A federal judge eventually threw these patents out, finding that Allergan had persuaded the PTO to issue the patents through “more advocacy than science.” These patents would have cost patients an additional $10.7 billion if a court hadn’t found the patents invalid. Sometimes, as the original patent on a lucrative drug is close to expiring, the brand name drug company will seek a new patent for something as meaningless as changing from a pill to a gelcap and call this a new innovation worthy of a new, multi-year monopoly from the government.