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Concept
Chemical patent
Summary
A chemical patent, pharmaceutical patent or drug patent is a patent for an invention in the chemical or pharmaceuticals industry. Strictly speaking, in most jurisdictions, there are essentially no differences between the legal requirements to obtain a patent for an invention in the chemical or pharmaceutical fields, in comparison to obtaining a patent in the other fields, such as in the mechanical field. A chemical patent or a pharmaceutical patent is therefore not a sui generis right, i.e. a special legal type of patent.
Chemical patent claims often use generic, Markush structures contained within them, named after the inventor Eugene Markush who won a lawsuit in the US in 1925 to allow such structures to be used in patent claims. These generic structures are used to make the patent claim as broad as possible.
In the United States, patents on pharmaceuticals were considered unethical by the medical profession during most of the nineteenth-century. Drug patent terms in the US were extended from 17 to 20 years in 1994.
Pharmaceutical patents are typically more valuable than any other type of patents, and thus play an essential role in the pharmaceutical industry. There are several reasons for this peculiarity:
the cost of research and development and getting an approval of a new medication, as well as the risk (failure rate) in developing a new pharmaceutical ingredient, is orders of magnitude higher than the cost of developing most other products.
on the other hand, the cost of making a known chemical is substantially lower, than the cost of developing a new pharmaceutical.
the patent monopoly of pharmaceuticals is usually policed by the government (FDA in the US), but in other industries the patent owner has to bear substantial expenses to enforce its patent monopoly.
A 2021 analysis of the most valuable US pharmaceutical patents published in the Orange Book between 2000 and 2018 showed that ca. 25% of these patents end up litigated in courts, but only 26% of these litigated patents are invalidated, well below the overall patent invalidation rate of 43%.
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