Concerns are often raised regarding the impact of strategies employed by originator pharmaceutical companies to expand patent protection with a view to maximising profits. It has been argued that such practices have a negative impact on competition and access to affordable pharmaceuticals for the public. This article focuses on ‘evergreening’ as one such strategy in an Australian context and argues that as a matter of practical reality, the impact of evergreening practices in Australia is not as detrimental as the concerns that have been raised regarding such strategies suggest. In support of this argument, this article examines: the ability of Australian patentability requirements to appropriately regulate the grant of follow-on patents, as demonstrated in cases of alleged evergreening including Merck & Co Inc v Arrow Pharmaceuticals Limited, Aktiebolaget Hassle v Alphapharm Pty Ltd and H Lundbeck A/S v Alphapharm Pty Ltd; the diverse generic and originator ownership of follow-on patents in Australia; the role of follow-on patent applications as part of legitimate and predictable business practices; the benefits potentially flowing from follow-on and cumulative innovation; and the limited scope and thus limited threat of follow-on patents in comparison to original patents. The findings of the Report of the 2013 Pharmaceutical Patents Review will also be considered.
Stephanie Crosbie is a final year Science/Law student from the University of New South Wales. The author would like to thank Dr Catherine Bond for her helpful comments on drafts of this article.
© 2012 Journal of Law, Information & Science and Faculty of Law, University of Tasmania.