Foreign majority of pharma medicine patent disputes

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The Beijing IP Court recently issued a briefing about pharmaceutical patent disputes heard in the past five years, which found that 70% of chemical pharmaceutical patent cases are foreign-related, primarily to the US.

Founded in November 2014, the Beijing IP Court is one of the three specialized IP courts in China, with the other two being the Shanghai IP Court and the Guangzhou IP Court.

Under China’s current legal system, the National Intellectual Property Administration of China (CNIPA) is the only authority for patent grants and patent validity reviews in China, and the Beijing IP Court has exclusive jurisdiction over appeals of final written decisions from the CNIPA regarding patent grants and validity reviews.

Therefore, the Beijing IP Court holds the trial benchmark for exercising judicial power in patent grants and validity reviews of pharmaceutical patents in China.

From November 2014 to the end of February 2020, the Beijing IP Court accepted 702 case filings involving pharmaceutical patents, of which more than 80% involved invention patents.

Ninety percent of the 702 cases, or 608 cases, are appeals of final written decisions from the CNIPA, among which there are slightly more re-examination cases than invalidation cases.

According to the data released by the Beijing IP Court, nearly 40% of the pharmaceutical patent cases are chemical medicine patent cases. In the 251 chemical medicine patent cases, 70% of them involved foreign factors.

Countries like the US, Switzerland, Japan, Germany and globally well-known pharmaceutical entities such as Pfizer, Novartis, MSD, Abbott, Bayer all have been involved in a number of cases, among which US companies top the number.

From this data, it is not difficult to understand why the grant and protection of chemical pharmaceutical patents will become a hotspot in the US-China trade agreement.

The chemical medicine patent cases have been divided into a wide range of specific fields, covering the diagnosis and treatment of major and chronic diseases such as cardiovascular and cerebrovascular diseases, tumors, mental diseases and lung diseases.

From the perspective of appeals of the CNIPA’s decision on the validity of chemical pharmaceutical patents, the proportion of foreign-related cases is relatively high, and most of them are invalidation actions filed by Chinese pharmaceutical enterprises challenging the validity of the patents of foreign pharmaceutical companies in China.

This feature is consistent with the industry status of China’s large-scale generic pharmaceutical market, but there are also cases in which Chinese pharmaceutical enterprises’ patents are challenged, which shows that the innovation ability of Chinese pharmaceutical enterprises is gradually improving.

Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Danian Zhang (Shanghai) at danian.zhang@bakermckenzie.com.