"What's really holding America back in the biopharma race against China isn't just Beijing's subsidies or cheaper labor. It's the U.S. Court of Appeals for the Federal Circuit's self-inflicted wound: a court so panel-dependent that no one-brand or generic-knows which rule will apply until the panel is drawn. The Supreme Court can fix this in one stroke by granting certiorari in MSN Pharmaceuticals v. Novartis (No. 25-225) and killing the bizarre "after-arising technology" exception that lets old, vague patents swallow future inventions."
"While U.S. companies bleed billions litigating 20-year-old genus claims, Chinese innovators are sprinting ahead in antibody-drug conjugates, bispecific antibodies, cell therapies, and next-generation obesity drugs. They file narrower, better-disclosed patents, face far less evergreening litigation, move faster, and increasingly license their breakthroughs to Western giants desperate to fill patent-cliff holes. According to the Financial Times, "[t]he data reflects that shift. China's share of global innovative drug candidates in clinical trials has risen from 8 per cent in 2018 to 30 per cent this year, according to McKinsey.""
The Federal Circuit's panel-dependent rulings create deep uncertainty about which patent rules will apply, enabling an "after-arising technology" exception that lets old, vague patents cover future inventions. That exception fuels expensive litigation over decades-old genus claims, draining U.S. companies and slowing innovation. Chinese biopharma firms file narrower, better-disclosed patents, face less evergreening litigation, move faster into antibody-drug conjugates, bispecifics, cell therapies, and next-generation obesity drugs, and increasingly license breakthroughs to Western companies. Granting certiorari in MSN Pharmaceuticals v. Novartis would force the Supreme Court to resolve conflicting precedents and eliminate the evergreening loophole.
Read at IPWatchdog.com | Patents & Intellectual Property Law
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