IPWatchdog Quotes Rachel Elsby from Panel Discussion on the Challenges of Patenting Discoveries in the Life Sciences

Akin Gump intellectual property partner Rachel Elsby has been quoted in the article “IPWatchdog LIVE ‘Jurassic Patents’ Panel Explores Patenting Challenges for Life Sciences Innovation,” following last week’s IPWatchdog panel examining the challenges of patenting discoveries in the life sciences in light of recent legal developments.

Elsby began by discussing the state of patent law currently in litigation, referencing two Supreme Court cases from the past decade—Myriad and Mayo—and two sections of the U.S. Code. She explained that there has been a sharp increase in the rate of defendants using Section 101 as a defense to infringement. That said, she stated, Section 112 has presented bigger problems for litigators, since those challenges are not very easy and it is difficult to show an examiner early on that a product in the life sciences will work the way you say it works when research is still ongoing.

Regarding the path to enablement, where patent applications in the life sciences can now run in excess of 100 pages, Elsby said there could be some scaling back in their length. She also commented on exclusivity considerations, stating that “regulatory exclusivity is better protection for biologics than patents.” In the end, though, she predicted that, while there are “difficult issues in the law for pharmaceuticals…there’s still a lot of innovation happening, we will move forward and these things will be protected.”