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Patent office shows tougher stance on "evergreening"

Published on 18/03/09 at 01:08pm

The rate of patent applications refused in Europe has risen to an all time high, as authorities target "evergreening" of intellectual property.

In 2008 the number of applications grew 3.6%, largely due to companies seeking to marginally 'update' and extend existing patents to hold off competition.

But the number refused crept up to more than 50%, compared with 49.5% in 2007, as a result of the European Patent Office (EPO) demanding better quality and relevance on applications put in.

President of the EPO Alison Brimelow says quality in the process must be maintained.

"The strict application of patentability criteria by our patent examiners has led to more refusals to grant a patent. These are important steps to ensure the relevance of the patents entering the innovation process."

The EPO received 146,600 applications last year compared with 141,400 in 2007. Companies attempt to continuously extend patents by seeking a new patent that "updates" the first one before its expiry, know as "evergreening".

It can be done by claiming things such as an "inventive" method for administering the pharmaceutical compound covered by the base patent. For pharmaceutical products, this can exclude generic competition and protect profits.

But in 2004 the EPO introduced new measures to deter companies from doing this, including the new practice of informing applicants early in the process of their likelihood of a successful application, which has encouraged companies in many cases to abandon their applications - something that has tempered what might have been an even sharper rise in refusals.

EU investigation

The debate about evergreening is particularly current for the pharmaceutical industry, as the European Competition Commission is currently investigating alleged anti-competitive measures around patents.

An EPO patent examiner has been seconded to the inquiry in order to offer technical expertise on the inquiry, which is expected to conclude some time this year.

European pharmaceutical companies are co-operating with the inquiry, but some pharma leaders have expressed frustration at what they see as a misguided focus on patent expiry issues.

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