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Drug Labeling Patents: A New Line of Defense for Protecting Old Drugs?

By Thomas C. Fiala and Jon E. Wright
June 29, 2005

Pharmaceutical companies have had some success extending the lives of their patent portfolios by obtaining patents that claim the combination of a known drug, a container for holding it, and a label providing instructions for a new use of the drug. These “drug labeling patents” have given such companies a leg up in their ongoing battle with generic drug manufacturers. However, a little-noticed judicial decision handed down by the Court of Appeals for the Federal Circuit (“Federal Circuit”) has cast serious doubt over whether drug labeling claims constitute patentable subject matter.

Drug Labeling Patents

For a blockbuster drug, each additional month of market exclusivity can mean $50 million or more in revenue. Pharmaceutical companies thus employ a variety of strategies to extend patent protection as far as possible. For example, early stage patents protecting a drug are typically directed to the specific composition of matter and related compounds classes or chemical structures. During the drug development stage, patents are typically directed to potential therapeutic uses and demonstrated biologic activity. During the clinical stage, patents may be directed to specific formulations, dosage forms and manufacturing methods. Finally, after-market modifications may warrant patent protection for improved pharmacokinetics or side effect profiles. All of these patents work together to fully protect the enormous amounts of innovation involved in bringing a successful drug to market.

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