While Alice arguably wreaked havoc for the past decade on patent plaintiffs, its reach into patents asserted by brand pharma companies was much more limited. A patent appeal between Sonos and Google currently pending before the Federal Circuit is likely to test the bounds of the doctrine of prosecution laches. Sonos claims it was robbed of a $32 million jury verdict after the district court found Sonos waited too long to pursue the claims asserted at trial. Amicus briefs have poured in highlighting a veritable policy debate over prosecution laches. Could the doctrine of prosecution laches eventually stifle patent evergreening for pharma patents in a way that Alice never could?
Read MoreOne of the common refrains from the pro-patent drug chorus is that patents are necessary to protect and incentivize expensive research and development by pharmaceutical companies. While that may be true in some cases, there are examples where it is clearly not. One current example includes deuterated analogs for ruxolitinib. One company researched which deuterated analogs among thousands of possibilities might be useful, whereas a different company cornered the market on all deuterated analogs based upon two sentences in patent disclosure years ago. Guess who wins.
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