Medical Companies Cheat More on Patents Than Other Industries, Study Shows

November 21, 2023

Companies that make pharmaceutical, biologic and medical devices are caught hiding relevant information or purposefully delaying applying for patents at the U.S. Patent & Trademark Office (USPTO) in gamesmanship moves that occur in the medical field far more than in other industries, according to recent reports.

A letter published in JAMA this week focused on how brand-name drug manufacturers use the patent system to delay or deter generic entry often committing inequitable conduct — misrepresenting or omitting material information specifically to deceive the USPTO.

Researchers lead by nationally-recognized expert on patent and drug law Sean Tu at the West Virginia University College of Law found that the Court of Appeals for the Federal Circuit — the sole appellate court with jurisdiction over patents — ruled on 125 inequitable conduct cases between 2004 and 2021, finding inequitable conduct in 36 cases — 24 (67 percent) of which concerned FDA-regulated products.

The reasons for the patent invalidations ranged from active misrepresentations to material omissions. The most common invalidation, however, was not revealing to the USPTO key printed publications.

Read the patent conduct letter here.

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