Lenoir, NC asked in Patents (Intellectual Property) for North Carolina

Q: Can a generic drug be patent protected if synergy improvements occur with a second additive?

2 Lawyer Answers
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC
  • Licensed in North Carolina

A: Many inventions involve components that are not patented protected. So it would be possible to have a patent application that involves a new pill with an old drug combined with another drug. There may be other ways to approach this type of invention.

What you cannot do is to remove the old generic drug from the marketplace with your new patent. The old generic drug cannot be impacted by a new patent application that was filed after the old generic drug was already in the marketplace.

Drug patents are not normally a do-it-yourself project so I advise you to find someone with a detailed scientific background that is a patent attorney to help you through this process.

Hope this helps.

Kevin E Flynn

Peter D. Mlynek
Peter D. Mlynek
Answered
  • Patents Lawyer
  • Moorestown, NJ

A: Yes, that is done frequently. It is not as easy, and the patent is not as strong as for the original API, but I've done it for clients many times.

In some countries, most notably India, they call this type of patenting "evergreening" and it is generally not allowed.

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