Emerging Issues Related to Patents

By Natasha Darlington
Natasha Darlington is a fourth year student at the University of Warwick studying Law.

The legal procedure for granting patents as well as the exclusive rights placed on the patentee varies depending upon countries’ national laws and agreements. Whilst the frameworks vary, it is sure that the patent system has grown across the world. As stated by the World Intellectual Property Organization, the “number of patent applications has never been higher,”[1] which has been supported by the “development of an ever-increasing range of technology.”[2] As a result of its increased use, it is essential to discuss the emerging negative and positive issues relating to patents, which exercise a fundamental role in a number of fields including the biotechnology and the pharmaceutical industries.

The system of patents faces a number of major challenges including the actual operation of the system, issues regarding granting of patent protection to various forms of technology, and the long-term social and economic impact of the patent system. Given the rising issues within protection for intellectual property, it is necessary for lawmakers to strike a balance between promoting progress as well as finding what is best for the citizens of the nation.

Patents relating to pharmaceutical inventions
One of the major emerging issues in the patent protection process relates to the US pharmaceutical industry, wherein the American legal procedure allows these companies to patent the ingredients used in their drugs. Given the political nature of the patent protection process, the results have led to pricing which is “contrary to the greater good of the nation.”[3] This has led to increased tensions between the buyer and the pharmaceutical industry as this patent protection grants the industry exclusivity over certain drugs leading to individuals unable to access the required medication.

Another emerging issue is that since patents can be sold, some companies have been able to purchase licenses to increase the drug prices rather than investing the money in medical research. Thus, it would seem that the “new market, a byproduct of patent protections is left unregulated.”[4] This seems counterproductive to the fundamental goal of the patent protection process, which was to ensure that patents are a means to allow for greater investment in research for new medications.

​New Patent Strategies in Biotechnology
Biotechnology is a rapidly changing market and inventors can have difficulties developing new strategies to protect biotechnology innovations. Issues that have emerged within this field include whether certain products are patentable subject matter, most notably with the 2012 Mayo case where the United States Supreme Court argued that diagnostic tests couldn’t be afforded patent protection. This has led to proponents of stronger patent protection who argue such decisions highlight the reduced incentives to invest in development of new treatments and diagnostic methodology.

Given that there are issues relating to which subject matter is patentable in biotechnology, there are those who believe inventors should utilize trade secret protection, as according to Jeremy Cubert, this could be appropriate “where particular methodologies are not easily detected by competitions.”[5] Whilst this is not a fully supported solution, it could be utilized where there is a risk that the invention cannot be patentable.

Solutions to the issues
There are others who are aiming to find the right solutions to the emerging issues relating to other social and economic problems of patent protection. Within the technology industry, for example, tech giants have been accused of trying to distort the patent protection process in order to repress any competition. A potential solution is forced licensing, which has been advocated within the technology industry as “bringing financial reward to the inventor” [6] as well as “speeding innovation.”[7] An issue with this is that it would require a knowledgeable legal background regarding how courts determine the appropriate licensing fee.

It may be a little difficult to speculate over the future of patent protection in the various fields; however, it is certain that companies, as well as lawmakers should prioritize finding a balance between the protection of consumer rights and the continued encouragement of innovation. Within the pharmaceutical industry, it is essential that the patent protection process be improved by decreasing time spent waiting for approval of new medications and decreasing the regulations, which are causing such high costs for single medicines.

Regarding other fields of interest including biotechnology and technology, one would argue for a method that promotes innovation within a healthy competitive environment to guarantee that the patent protection process can ensure we move forward with new inventions which will benefit us all.

[1] “Current and Emerging Issues Relating to Patents.” World Intellectual Property Organization. Accessed March 8, 2018. http://www.wipo.int/patent-law/en/developments/intro.html
[2] Ibid.
[3] “Why Patent Protection in the Drug Industry is Out of Control.” Forbes. Accessed March 9, 2018. https://www.forbes.com/sites/robertpearl/2017/01/19/why-patent-protection-in-the-drug-industry-is-out-of-control/ - 5cb9d8de78ca
[4] “Patents and the Pharmaceutical Industry.” Berkeley Haas School of Business. Accessed March 9, 2018. https://cmr.berkeley.edu/blog/2017/5/patents-and-pharmaceuticals/
[5] “Are Biotechnology Patents Dead?” Genetic Engineering & Biotechnology News. Accessed March 9, 2018. https://www.genengnews.com/gen-exclusives/are-biotechnology-patents-dead/77900698
[6] “The problem with patents.” TechRepublic. Accessed March 9, 2018. https://www.techrepublic.com/blog/tech-decision-maker/the-problem-with-patents/
[7] Ibid.
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