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Nature Biotechnology publishes “Patents or patients: who loses?” by Nutter partner Konstantin Linnik, Ph.D.

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September 2014 | Article

Konstantin Linnik, Ph.D., a partner in Nutter’s Life Sciences and Intellectual Property practice groups, co-authored “Patents or patients: who loses?” in the September 2014 issue of Nature Biotechnology. The article discusses how the unprecedented weakening of patent rights in the United States undermines necessary incentives for the discovery and development of innovative medicines. Several court decisions have created additional and higher hurdles in satisfying the legal requirements for obtaining a patent.

In the last two years, the Supreme Court has taken a fresh look at 35 USC Section 101, the statute governing patent eligibility for inventions. In Prometheus v. Mayo, the Court was asked to determine the patentability of method-of-treatment claims that involved correlating the effectiveness of the treatment with the amount of a drug metabolite in the blood. The Court reasoned that the claims were attempting to cover a “law of nature” (i.e., the correlation itself), which is not “man-made” and therefore not patent-eligible under Section 101. Not only have Prometheus and Myriad uprooted the established patent law framework for determining what is and what is not eligible for patent protection, these decisions also made the United States the only jurisdiction in the world that excludes from patent eligibility whole classes of biomedical inventions that are patentable elsewhere in the world.

The authors note that by weakening the patent system, we reduce incentives for innovators to publicly disclose their inventions and inhibit the discovery and development of innovative medicines. They point out that doing so harms not only those who invent new therapeutics, but also generations of patients in dire need of breakthrough treatments. A wiser long-term approach is to err on the side of encouraging disclosure, not promoting trade secrecy.

To view the article, click here.

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