The patents and the pendulum: an outlook on patent eligibility laws affecting the pharma industry

In an Expert View piece, Doug Robinson, principal at IP firm Harness Dickey, considers some of the challenges facing the pharma industry in the field of patent rights.

It’s no secret that patent rights have been significantly harder to obtain in recent years. Some of that has been based on legislative action (the AIA) and some has been based on judicial action. Some in the tech industry — mainly computer and electronics companies — have been a primary driving force advocating for these changes. This is at odds with the traditional view in the pharmaceutical sectors, where the availability of patent rights is considered to inspire innovation. But, US patent law is a one-size-fits-all regime, and unfortunately the pharmaceutical sector view on patents rights has been losing recently.

The struggle over patent eligibility standards crystallizes the fundamental tension between the two views.  On one hand, the carrot of patent rights makes costly pharmaceutical research worthwhile, and if more types of ideas are eligible for patenting, then it logically follows that there will be research into more types of treatment or diagnostic options.  On the other hand, some businesses in the tech industry see broader patent eligibility as leading to "patent trolls" and "bad patents" that need to be removed. Like the broader trend in patent law, the law of patent eligibility has swung in favor of stricter eligibility requirements, though the pendulum may be starting to swing the other way.