As it becomes harder for rights holders to control the flow of infringing medical products, Baker Botts’ Neil Coulson and Mark Whitaker review developing case law on both sides of the Atlantic.
Whether a company develops physical tools for medical purposes or has pre-existing pharmaceuticals that can be commercialised in new ways via innovative devices, the ability to seek patent protection for as long as possible is a key issue for any medical technology company. A 2013 study by PricewaterhouseCoopers1 showed that the litigation success rate for medical device patent holders was 42%, 10% higher than the success rate for all patent owners combined. The same study showed that the median damage award in the US in respect of medical device patent cases was $16m, compared with an ‘all-industries’ median of $6m. The international nature of the industry has allowed competitors to import and export their products to new markets, making it difficult for rightsholders to control the flow of infringing products. Here we look at a recent decision in the UK relating to the applicability of supplementary protection certificates (SPCs), and the developing jurisdiction of the US International Trade Commission (US ITC), specifically as it relates to medical devices.
Originally published in Intellectual Property Magazine, July/August 2014.
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Topics: Medical Devices, Patent Applications, Patents, Pharmaceutical, UK
Published In: Antitrust & Trade Regulation Updates, Civil Procedure Updates, Intellectual Property Updates, International Trade Updates, Science, Computers & Technology Updates
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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