Mark Metzke

In the pharmaceutical industry, product hopping may occur in the patenting of a purified enantiomer after the patenting of its parent racemate. By product hopping, a brand name manufacturer delays generic competition and maintains market exclusivity. This delay results in higher product costs to patients, harming the public and conflicting with the core utilitarian goals of the patent system. This Note proposes several changes to the obviousness doctrine to better prevent brand name manufacturers from product hopping. By establishing prima facie obviousness as given, changing what courts may consider an “unexpected result, ” and adjusting the secondary considerations courts consider in patent cases, some of the most problematic forms of enantiomer product hopping can be eliminated.

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January 15, 2010 PDF Articles, Volume 14

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