4 ms·

Evergreening. US patent system has no provision to ban this practice. India, for example, requires the patent to be substantially different from the original. I

Evergreening. US patent system has no provision to ban this practice. India, for example, requires the patent to be substantially different from the original. It’s the same trick used by drug manufacturers.

zerocrates 6y ago
I've never quite gotten the problem with evergreening. The story is, a drug company seeing their patent expiration come up, makes some small improvement and patents that, getting them a new term. So far I'm following along. But the narrative is, this locks out generics somehow. The new patent can't cover the subject matter of the old patent, as its automatically prior art, so only the improvements are covered by the new patent. If the "improvements" are so minor as to be irrelevant then I don't see how this is a real impediment to a generic. If on the other hand there's a significant improvement, it seems like that's really something that should be getting patent protection. I just feel like there's always a step missing in the usual simple descriptions of evergreening I see. Is this all just tied in with something like doctors writing brand-name prescriptions, and the brand name just gets these minor pointless "improvements," but enough to diverges away from what the generic is so it can't be easily substituted?
- ISL 6y ago
  I'm no expert in this sort of thing, but it would seem that if a trade-secret is required for efficient production, patenting the trade secret near the end of the patent's life would be a way to effectively extend the original patent.
- Misdicorl 6y ago
  I think the missing step is likely the many millions dollars it takes to defend yourself in patent court. Even if you're likely to win, it brings a generic offering below profitability.
  - marcus_holmes 6y ago
    This. A patent is not protection against competitors copying details of your product. A patent is a ticket to an incredibly expensive court battle. To a certain degree, it doesn't matter if your patent isn't completely valid, or doesn't completely match what your competitors are doing. The point is to have deeper pockets than them and be able to spend more on lawyers than them. As long as your patent lasts long enough in court to stop your competitors from doing whatever you don't want them to do, it has achieved its goal. Patents are so broken. (IANAL, just an MBA who's heard some war stories).

zerocrates 6y ago

I've never quite gotten the problem with evergreening. The story is, a drug company seeing their patent expiration come up, makes some small improvement and patents that, getting them a new term. So far I'm following along. But the narrative is, this locks out generics somehow. The new patent can't cover the subject matter of the old patent, as its automatically prior art, so only the improvements are covered by the new patent. If the "improvements" are so minor as to be irrelevant then I don't see how this is a real impediment to a generic. If on the other hand there's a significant improvement, it seems like that's really something that should be getting patent protection. I just feel like there's always a step missing in the usual simple descriptions of evergreening I see. Is this all just tied in with something like doctors writing brand-name prescriptions, and the brand name just gets these minor pointless "improvements," but enough to diverges away from what the generic is so it can't be easily substituted?

ISL 6y ago
I'm no expert in this sort of thing, but it would seem that if a trade-secret is required for efficient production, patenting the trade secret near the end of the patent's life would be a way to effectively extend the original patent.
Misdicorl 6y ago
I think the missing step is likely the many millions dollars it takes to defend yourself in patent court. Even if you're likely to win, it brings a generic offering below profitability.
- marcus_holmes 6y ago
  This. A patent is not protection against competitors copying details of your product. A patent is a ticket to an incredibly expensive court battle. To a certain degree, it doesn't matter if your patent isn't completely valid, or doesn't completely match what your competitors are doing. The point is to have deeper pockets than them and be able to spend more on lawyers than them. As long as your patent lasts long enough in court to stop your competitors from doing whatever you don't want them to do, it has achieved its goal. Patents are so broken. (IANAL, just an MBA who's heard some war stories).