The Art of Using Secondary Patents to Improve Protection

Abstract

In an environment where there is ever increasing pressure on innovator pharmaceutical companies to maximise return on investment and where share values may be substantially affected by court decisions in patent litigation between pharmaceutical innovators and generic companies, a key element of pharmaceutical life cycle management strategies is to extend patent protection for as long as possible by filing secondary patents to keep generics off the market. This paper considers the approach taken by the UK courts to the enforcement of secondary patents, focussing on recent decisions of the UK courts and attempting to draw some conclusions from the case law as to the types of secondary patent that may be enforceable in the UK and the implications of the case law for the development of a credible life cycle management strategy.