Christie, Dent and Studdert, ‘Evidence of “Evergreening” in Secondary Patenting of Blockbuster Drugs’

Secondary patents associated with blockbuster drugs are granted for follow-on innovations relating to the active pharmaceutical ingredient (‘API’) of the drug. Our analysis of all secondary patents for 13 top-selling drugs in Australia shows that, while the majority of follow-on innovations are made by entities other than the originator of the drug, the innovations with the highest private value are undertaken by the drug’s originator and concern a delivery mechanism or an alternative formulation for the API. Since that is the type of follow-on innovation most commonly undertaken by drug originators, and considered most likely to result in a de facto extension of marketplace monopoly over the drug, we see in these findings evidence that the originators of blockbuster drugs engage in secondary patenting that has an ‘evergreening’ effect.

Christie, Andrew, Dent, Chris and Studdert, David M, Evidence of ‘Evergreening’ in Secondary Patenting of Blockbuster Drugs, (2020) 44(2) Melbourne University Law Review 537.

First posted 2021-10-21 12:00:36

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