2018-10
17-1229
Helsinn Healthcare S.A., Petitioner v. Teva Pharmaceuticals USA, Inc., et al

Summary Analysis

R-10
DATE: 2019-01-22
DOCKET: 17-1229
NAME: Helsinn Healthcare S.A., Petitioner v. Teva Pharmaceuticals USA, Inc., et al
WORTHY: True

OPINION: Court
   AUTHOR: Thomas
   JOINING: Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh
   GOOD: Yes
PAGES: 9


Case Commentary

I am Anti-Patent.

According to The Constitution, a Patent may be granted for any 'new, useful, and non-obvious advance in technology'. Eh, I am simplifying. Deal with it.

{The short answer for why I am Anti-Patent is that (in my opinion) almost all advances are (in fact) obvious. I would happily grant Patents to the remaining 10-20 Novel Inventions that are made per year.

As to the long answer, I believe Patents stifle Trade and Innovation rather than bolster it. They are (as the Economists say) Rents without any corresponding benefit.}

Continuing on, the American Invents Acts (forgive me if I don't provide its full ego-glorifying name) bars granting of a Patent if any of the following apply:

• Previous Patent
• Described in Print
• In Public Use
• Available for Sale
• Otherwise Available to the Public
• Intellectually
• Physically

This, of course, is my language, so look to The Source, if you really care about any of this.



As to the case at hand, a drug (some form of Palonosetron) was (in the order listed):

1. Developed
2. Sold
3. Patented

The sale proceeds the Patent; and so, the Patent is nullified. Personally, I think it's a bit cheesy, since the sale in question was for the rights to market the proceeds of a future patent. But hey, cross your T's and get your patent first.



There were upwards of 300,000 Patents issued in 2018. Several companies were granted more than 1,000.

Wow!

Progress!

Or not.

Consider that the Patent being disputed in this case is the Fourth Patent for Palonosetron, which means it was the Fourth Patent issued for more-or-less the same thing (i.e. Palonosetron). In fact (to the best of my knowledge), the only thing new (a requirement for a Patent) in the Fourth Patent (as apposed to the previous three) was the dosage and modality (a .25mg solution of Palonosetron used as eye drops, in this particular case). However, I would put it to you that there is nothing 'non-obvious' (the language used in The Constitution) about either changing the dosage or administering a drug (any drug) through a new modality, be it via pill, injection, eye drops, or whatever. Thus, a new Patent should have never been issued in the first place... or should that be, in the fourth place?

Of course, this isn't The Supreme Court's fault. It's the Patent Office's fault.

And if you want my honest opinion, the Patent Office is behaving this way because we are in the midst of an International Trade War. {Probably, always have been. Probably, always will be.} And at the present moment, it is perceived that trivial patents (such as this one) favour US Merchants (because US Merchants own more of them). As such, I predict things will change (suddenly and abruptly) when that is no longer perceived to be the case; and every Patent Under the Sun will become Null and Void, because selling a drug in multiple dosages is pretty 'obvious', don't you think?



Anyhow, the Legal Principles are easy enough to follow. And I agree with the upshot, because (as I said) I am Anti-Patent. And with any luck (and as time goes by), the Patent System will become ever weaker.