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August 12, 2009

Correction: Drug Patent Term Not Seven Years; Up to 20 Years

Before my misinformation gets any further out there:

Hi all,

First time poster -- just wanted to correct something that Ace had mentioned yesterday, and which Drew follows up on here: Patent term in the US is normally 20 years from filing, and can be adjusted outwards due to delays in the prosecution of the patent. The actual 'effective' term of drug patent seems less because Pharma has to file the patent soon after making the invention (or face the possiblity of losing patent rights), but they are unable to market the drug until the FDA type approvals are completed. So the amount of 'enforceable patent time' on a drug patent varies on a case by case basis, based upon the filing time and the FDA approval process, but isn't necessarly capped at 7 years.

I think the comment by BHO yesterday must be a random aside, because as US patent attorney 1) I haven't heard this discussed in any of the Patent Refrom bills, and 2) it would be a real mess to implement....

Posted by: bsclark12

He's right.

I don't know why "7 years" got lodged into my head. Apologies. I think maybe that might have been a claim about the how little time some drug-makers get the benefit of their patent, i.e., after FDA approval and getting it marketed, but before your patent runs out, but as I was wrong in the first place I don't really want to speculate further.

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posted by Ace at 12:08 PM

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