Evergreening Of Patents: Bridging The Gap Between Intellectual Property Rights And Healthcare Law
- IJLLR Journal
- Jun 29
- 2 min read
Shilpi Bose & Ishan Dhyani, LLM (IPR), University School of Law and Legal Studies, GGSIP University
ABSTRACT
Evergreening of patents is a contentious practice in the pharmaceutical industry which involves the tweaking of existing patents to extend their lifespan. This is achieved through minor modifications of the patented drugs, such as changes in formulation, dosage, or delivery method. Critics argue that evergreening hinders generic drug entry, maintains high prices for the drugs and limits access to affordable medication. This research paper examines India’s patent evergreening laws, analyses legal precedents, statutes, and the broader implications of evergreening.
1. INTRODUCTION
A patent is a time-limited exclusive right granted by the government to an inventor for their creation. The system aims to strike a balance between rewarding innovation and fostering progress by encouraging the sharing of knowledge through disclosure. The temporary monopoly allows the inventor to profit from their invention, providing an incentive to disclose it. This disclosure, in turn, promotes further innovation. Once the patent expires, others are free to use the invention, with the disclosure making it easier to do so.
Innovation and progress rely on sharing knowledge to advance research and development. The patent system’s requirement for full disclosure facilitates this. Once a patent expires (typically after 20 years), the invention becomes public property, freely usable without needing additional innovation. Unfortunately, some try to extend their exclusive rights by patenting minor, insignificant changes to the original invention.
“Evergreening in a general sense refers to the extension of the duration of an existing temporary monopolistic or market dominant position by various means or strategies.” Patent evergreening is when companies, often pharmaceutical ones, use strategies to extend their patent protection and keep exclusive control over their inventions. They do this by making small changes and filing new patents, which can limit access to affordable medicines and undermine the purpose of patent law, which is to encourage innovation while ensuring public access to important products. “Evergreening can then be accomplished by erecting entry barriers of all sorts or delaying entries or weakening competition and/or strengthening own competitive advantages when the dominant position is threatened.” “In the words of Federal Court of Appeal, it is like “adding bells and whistles to the original products”. Evergreening also results from a new use of a known substance.” “Typically evergreening has been practiced in pharmaceutucal industry when an IP-based temporary monopoly is about to expire, and then IP strategies for evergreening of IP as well as other means have been used to evergreen product sales.”
