For a successful biotech or chemical drug, litigation is generally expected, says Eileen McMahon in Law Times

Biotechnology Patents Frequently Challenged

January 30, 2012

There have been many court challenges over pharmaceutical patents in Canada that have lawyers watching out for their clients in the biotechnology field. Biotechnology is an area in which companies are focused on developing drugs from ingredients that include living organisms or their derivatives in order to cure an illness.

Eileen McMahon indicates that litigation relating to biotechnology patents is common because the drug sector is a growing and competitive field. "These companies invest significant time, effort and resources into developing drugs. The return for them is a period of exclusivity once the drug is approved. If there is any threat to that exclusivity, then litigation is the result," she says.

Eileen notes that it is largely competitors that will challenge a patent in drug sector. "Generally in the drug sector, a competitor will seek to challenge the patent exclusivity of the drug owner, whether the patent relates to a biotech or chemical drug. If there is a chance that the exclusivity will fall, then there's an incentive for a competitor to challenge the exclusivity. This results in challenges to the patents underlying the exclusivity. The patents can be attacked on various grounds, including that the inventions claimed in the patents are not new or inventive. Usually, the patent owners are well prepared for such challenges," she says.

"In fact, for a successful biotech or chemical drug, litigation is generally expected." Many biotech companies have established partnerships with larger pharmaceutical companies. The large companies often handling the marketing of the drugs, as well as the litigation related to them.

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