Brilliant legal eagle, Kevin Noonan, and I collaborate each year on an article covering what we consider to be the top ten United States biotechnology patent law judicial decisions of that year. Our article, "Biotechnology Patent Law Top Ten of 2020: Valeant Victorious, Falling Eagle, and Successful Slayback", was recently published in the Texas A & M Journal of Property Law (citation: 8 Tex. A&M J. Prop. L. 409-472 (2022)). Download the article here for free. Here is the abstract:
One of the most famous trilogies ever published ends with the hero, Frodo the hobbit, sailing aboard an elven ship from the Grey Havens of Middle Earth to the Undying Lands in the west. Despite this being the third in a series of “Biotechnology Patent Law Top Ten” articles, in this trilogy the world of biotechnology patent law has no leading hero, no ultimate destination, nor any final resolution of issues.
To the contrary, this exciting area of law and technology continues to witness winners and losers in myriad battles across a wide doctrinal theatre of legal war with no end in sight. It is true that some in biotechnology view the uncertainty surrounding the scope of patentable biotechnological subject matter under 35 U.S.C. § 101 as a metaphorical ring they wish the fires of Mount Doom could destroy (or at least clarified by the United States Supreme Court). Others consider the ongoing patent disputes between the University of California, University of Vienna, and Emmanuelle Charpentier (often referred to collectively as “CVC”) and the Broad Institute of MIT and Harvard to be as consequential as the Battle of the Five Armies. We will not even try to compare the endless Abbreviated New Drug Application (“ANDA”) struggles between brand pharmaceutical companies and their upstart generic drug firm rivals using a literary device derived from The Lord of the Rings.3 Suffice it to say that biotechnology patent law will continue to vigorously evolve, and we plan to continue our coverage of its evolution beyond the current trilogy of Biotechnology Patent Law Top Tens.
As in previous years, we admit it was difficult to choose precisely ten top biotechnology patent law decisions. There are certainly otherswe did not include that warrant close attention for their reasonings, rules, and future implications. Nevertheless, both we and our readers can count, so we have done our best to select what we consider to be the top ten biotechnology patent law decisions of 2020. We discuss these decisions [in the article].
To avoid falling behind, consider reading the 2020 Top Ten promptly, because publication of our Biotechnology Patent Law Top Ten of 2021 is imminent.