A Disscussion On The Principle Of Prohibiting Double Patenting In The "Evergreen" Patent

The“evergreen”patent of drugs is a patent obtained by a patented pharmaceutical company when it applies for a peripheral patent,constructs a patent jungle,or makes minor improvements to the patent technology when the core patent is about to expire.The formation of the "evergreen" patent of drugs has extended the period of patent protection,delaying or preventing the listing of generic drugs,and bringing huge profits to the patentee.For the public,the "evergreen" patent of drugs breaks the balance between public health and patent protection.While for the pharmaceutical industry,the resources of patent examination are wasted and the development of generic drugs is impeded,which are not conducive to technical exchanges and progress.Therefore,whether from the perspective of protecting the health rights of citizens or maintaining the competition in the pharmaceutical market,it is necessary to legally regulate the “evergreen” patents of drugs.The principle of the prohibition of double patent is to prohibit the granting of multiple patents for “the same invention”.The unique advantage of this system in regulating the “evergreen” patents of drugs is that it can be applied in patent authorization review and subsequent invalidation and infringement lawsuits.In particular,the ability to identify and avoid the “evergreen” behavior of pharmacy during the patent examination and authorization phase can be said to be the source of governance,which can greatly reduce the possibility of obtaining patents for the “evergreen” strategy of drugs and reduce disputes,and save administrative and judicial costs.Due to the high research and development costs,highly relying on patent protection and the lucrative profits of “Blockbuster drugs”,pharmaceutical companies with patent often use relevant strategies to make medicines being protected by “evergreen” patent.Specifically,there are three strategies mainly: applying for patents for meaningless subtle improvements,building a patent network based on a basic patent to create a patent jungle,and launching malicious suits against opponents.Among the above patent application strategies,only the subtle improvement of patent technology without substantial significance goes beyond the reasonable scope of patent monopoly,which will affect the public interest and hinder the development of the industry.The purpose of the patent law to prohibit the principle of repetitive authorization is precisely to prevent minor improvements in technology without substance and to obtain a patent authorization.Therefore,it is important to clarify the prohibition of the principle of repetition,specific rules and judicial application for the regulation of the “evergreen” patent.The prohibition of duplicate authorization in patent law is realized mainly through the following three specific rules: “the same invention can only grant one patent right,conflicting applications,and creativity review.In the process of applying,the above-mentioned specific rules play its rule through the direct replacement of the usual means,the judgment standard of the technical plan,the judgment of “non-obviousness”,and the determination of “unexpected technical effect”.The “evergreen” patent prohibits the specific institutional framework to which the principle of double patenting applies.The main reason for the prohibition of the principle of repeated authorization in the regulation of "evergreen" patents is that there are conflicts between interpretation and application the rules of the prohibition of repeated authorization in China,such as the understanding of "the same invention and creation".In the "one invention,one patent" and the conflicting application,the scope and standard of identification are not uniform and the "the same technical judgment of the technical scheme" is different between the pre-authorization stage and the postauthorization stage.This is the "evergreen" patent for breeding drugs,providing a rule space for patent owners to use,adding uncertainty to the development of generic drugs.On the other hand,compared with the legal practice in the United States and India,the threshold of creative judgment in China needs to be improved,the statutory double patenting and obviousness-type double patenting in the United States,as well as the relevant provisions of India's creativity review standards,can effectively curb the production of “evergreen” patents for drugs.In combination with the problems in the above application,it is suggested that legislation and justice should be improved in the following three aspects: First,clarify the meaning of Article 9 of the Patent Law.Second,reunify the standards of “the same invention and creation” in patent examination and judicial application.Last,raise the standard of creative judgment.