Pharmaceutical companies depend on patent protection to recuperate the high costs of research and development. In regards to the patentability of structurally related compounds, the courts must decide whether a compound is obvious in view of its structurally similar prior art. In general, a compound is non-obvious over the structurally related prior art if the compound exhibits unexpected results. However, placing primary emphasis on a compound's unexpected properties is out of step with the realities of drug development. For example, during drug development, chemists will modify a compound's structure until they produce a compound that exhibits optimal pharmakinetic properties. This iterative process relies on the perseverance of scientists to pave the road to drug discovery-not unexpected results.
This Note advocates for the elevation of the failure of others to make a drug that benefits society and the long-felt but unmet need for that treatment in the obviousness inquiry. These factors highlight the underappreciated realities of the drug discovery process, the immense effort that precedes a drug's delivery to market, and the profound effect pharmaceuticals can have on disease treatment. In giving greater credence to the failure of others to develop a drug and the unmet need for that treatment, courts can resolve the current disconnect between the laboratory and patent law. By rewarding innovators that embark on a logical research plan that ends in the development of a beneficial drug, patent law will encourage companies to invest in drug development and produce drugs that benefit society.
Jolie D. Lechner,
Rebutting Obviousness in the Pharmaceutical Industry: Secondary Considerations of Analogs,
Chi.-Kent J. Intell. Prop.
Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol11/iss2/3