The Long CON: An Empirical Analysis of Pharmaceutical Patent Thickets
DOI:
https://doi.org/10.5195/lawreview.2024.1049Abstract
Over the past two decades, drug manufacturers have tripled the intensity of patenting around their drugs with 1.86 patents per active ingredient in 2001 to almost six patents per active ingredient in 2019. This three-fold increase in patenting has led to a dense web of overlapping intellectual property rights called “patent thickets.” These thickets can include dozens and sometimes hundreds of less innovative “secondary” patents. Many of these secondary patents use a special “continuation” application (“CON”), which allows brand manufacturers to spawn additional patents from a previous patent family member without disclosing anything new. CONs allow brand manufacturers to quickly create less innovative nuisance patents that are designed to delay or deter generic market entry. This Article focuses on the use of CONs in the creation and enforcement of pharmaceutical patent thickets.
This study analyzes data on all continuation applications from 2000 to 2022 (over 7.5 million patent applications) and links these applications to subsequent patent litigation from 2000 to 2022. This study also focuses on continuation applications filed more than five years after the original application’s priority date (“Long CONs”). When we compare pharmaceutical patents against all other technology groups, we show that Long CONs are usually part of large patent thickets and are strategically important components of brand firm litigation. We find that the use of Long CONs has steadily increased over the last three decades for some technology types, but this increase is more pronounced for pharmaceutical patents.
Long CON patents represent only 8.3% (639,308/7,692,046) of all patent applications; however, Long CONs represent 23% (9,836/43,220) of all litigated patents. Additionally, 51% (323,908/639,308) of all Long CONs come from just a few industries. The pharmaceutical industry disproportionately files and litigates Long CONs patents. We find that Long CONs represent 33% (2,126/6,432) of all small molecule pharmaceutical patents and 36% (900/2,534) of all litigated small molecule pharmaceutical patents. This data shows that patent thickets built upon continuation applications have a disproportionate effect on litigation, which may result in higher drug prices for longer periods of time.
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