Certain drug patents ‘survive IPRs at higher rate’

Intellectual property law firm Fitzpatrick, Cella, Harper & Scinto has released research suggesting that certain pharmaceutical patents survive challenges at the USPTO’s Patent Trial and Appeal Board (PTAB) “at a significantly higher rate than patents across all technologies.”

The findings are included in a report called “Drug Patents May Fare Better Than Other Technologies in IPR Proceedings.”

Fitzpatrick said that for pharmaceutical companies, the research is a rebuke to the prediction made soon after the PTAB was established in 2012 that the forum would become a patent “death squad.”

The law firm said the findings were based on a review of more than 200 IPRs concerning Orange Book listed drugs and more than 25 IPRs concerning biologic drugs.

Fitzpatrick said that across all technologies, all patent claims survived inter partes review (IPR) in 19% of final written decisions.

It said that for Orange Book listed drug patents, all claims survived IPR in 50% of final written decisions, and for CDER listed biologic drugs, all claims survived IPR in 37.5% of final written decisions.

Across all technologies, it said IPRs were instituted at a rate of 53%; for Orange Book listed drug patents IPRs were instituted at a rate of 44%; and for CDER listed biologic drugs IPRs were instituted at a rate of 41%.

“This research is encouraging to the pharmaceutical industry, and as a law firm committed to understanding how our clients will be affected by PTAB proceedings we are excited to bring it to light …” said Robert Schwartz, a partner at Fitzpatrick and chair of the firm’s biotechnology and biologics industry group.

“Over recent years, a number of assumptions have been made about how patent disputes will be resolved by the PTAB — and some have turned out to be wrong.

“Our BiologicsHQ database allows Fitzpatrick to provide up-to-date information that we believe will provide added value to our clients and BiologicsHQ users.”