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Patent thickets: an IP reality posing unique challenges

Road Runner cartoon fans know that if Wile E. Coyote pulls out a bucket of glue to capture the elusive bird, things are not going to go well. Whatever happens, the nature of the sticky situation is one that will mean trouble for the canine and elicit laughs from viewers.

In the intellectual property realm, the patent thicket is a sticky situation many may encounter. The humor is lacking, however. As described by most observers, it involves creating a web of patents around a single product or process. The result is that a long list of patents that makes it easier for a company to extend its exclusive right to monetize a product beyond the original patent expiration.

The thicket reality

Those with experience in IP litigation know that the companies that create thickets tend to be those focused in technology or pharmaceuticals. AbbVie, serves as one example.

As a recent news story notes, the company makes Humira, the top selling arthritis pain medication in the world. It holds 132 issued patents related to the product and its production processes, and has another 247 patent applications in progress.

While the patent on Humira itself expired in 2016, critics allege that the company's patent thicket has created a barrier to competition such that the first biosimilar alternative won't be available in the U.S. until 2023. In the meantime, according to a suit filed recently by a labor union, Humira has used thicket protection to justify outrageous price hikes in the U.S. for a drug that cost much less in Europe. Congress is also beginning to look at the pharma patent practices.

Critics observe that from an innovator's perspective thickets run counter to the intent of patent law, which is to incentivize innovation. What often happens instead is that young companies trying to advance new ideas get flooded with infringement claim letters from patent holders. This leaves in-house counsel spending long hours trying to figure out which claims are valid and which are frivolous.

Regardless of personal views about multiple patent strategies, they remain a fact of life pending some reform. Meanwhile, consulting a skilled attorney can help navigate the way to an optimal outcome.

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