A medical patent is a legal safeguard that provides security for an inventor’s medical idea or product against a subsequent similar idea or product. When the government provides you with a patent — also known as an “intellectual property right” and a key driver for innovation — competitors are prohibited from making, using or selling the patented-protected product for a specific period of time. The U.S. Patent and Trademark Office (“USPTO”) is the agency that has jurisdiction over patent approvals, and generally these patents last for twenty years.
In the medical field, pharmaceutical patents can be filed for certain drugs developed by biotech pharmaceutical companies who wish to shield it from competition for a certain number of years. This lets the company earn profits on their drug before a competitor can develop a similar or generic version, which allows that company to be compensated for the research and development that went into that product.
If a drug is protected by a patent, there are some instances where a different company can use the protected product. For example, the owner company can license its product out to a second company, making it possible for both companies to use the product while still providing the owner company with an overall benefit of having that patent.
To obtain a medical patent, the owner company has to provide the government with enough research and data to get the drug approved by the U.S. Food and Drug Administration (“FDA”). This process can take eight years or longer. Once that patent expires, most of the brand name products vanish as competitors are able to sell generic versions at a much more affordable cost.
In order to avoid this, the owner company will typically file continuous patents in order to prolong the shelf life of the drug and prevent other competitors from doing this. This often leads to constant litigation by both the owner company and the competitor companies. For instance, the owner company can sue in court over the generic version of their patented drug, and the FDA is then forced to freeze the approval of the generic version for 30 months unless the case is settled within that time frame. Because this could be very detrimental to the competitor companies, they try and sue the owner company to invalidate those continuous patents.
Chiacchio IP is an active contributor to industry literature. We also give frequent presentations on topics relating to business patents and other intellectual property.