Intellectual Property Really Is Life Sciences’ Lifeblood


Anyone who questions the common wisdom that intellectual property is the lifeblood of life sciences needs only look at two recent examples.

The U.S. Constitution provides authors and inventors with the ability to assert exclusive use of their intellectual property, which includes patents, copyrights, trademarks and trade secrets. The common wisdom is that those being asked to invest in the development of a drug demand that exclusivity to have a better assurance that they will recover their investment.

In the cancer moonshot, the White House has proposed a $1 billion initiative to jump-start the effort. But, given that estimates for the average cost of developing a drug range from $4 billion to $11 billion, additional investment surely will be needed.

That is why a prominent attorney and blogger caused some stir when he suggested that, given recent Supreme Court decisions that have found claims using natural products of the body to be patent ineligible, fast-tracked cancer immunotherapy claims could face rejections by patent examiners.

Some attorneys agreed, others disagreed, and I wrote an article about it for Bloomberg BNA that you can find here.

The other example that has turned up is related to the controversy concerning Mylan’s EpiPen, a medical device for injecting a measured dose or doses of epinephrine for the treatment of severe allergic reactions. Consumers and members of Congress have complained that the price of the EpiPen, which can provide lifesaving treatment, has jumped tremendously over the past few years.

But a UK blog noted that an interesting side-effect of what is otherwise unwarranted criticism for Mylan is that it enhances the value of its EpiPen trademark. A Bloomberg Business Week 2015 article described how Mylan expanded name recognition for the EpiPen through clever branding and public awareness campaigns. And now the controversy concerning the price of the EpiPen hinges on the fact that it is, for now, the dominant product on the market with an 85 percent market share, which can only enhance the value of its trademark by having physicians and consumers think only of Mylan’s product for a pen treating allergic reactions.

So, even when things might appear to look gloomy, the intellectual property train just keeps chugging along.

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