patents & biotechs - article

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    Pfizer's Definition Of 'Invention'
    Matthew Herper, 03.06.03, 2:25 PM ET

    NEW YORK - Today Pfizer is celebrating because a patent covering a whole class of arthritis medicines was declared invalid. But the world's largest drug company still insists that a similarly broad patent on impotence pills is valid. Any cynic would note one difference between the two patents: Pfizer owns the impotence patent, not the arthritis one. Still, it is worth taking a look at Pfizer's definition of the word "invention."

    In October, Pfizer (nyse: PFE - news - people ) sued several rivals developing impotence pills that work by inhibiting an enzyme called PDE-5, just like Pfizer's Viagra. Pfizer said one of its patents on Viagra also covers any other drugs that work by inhibiting PDE-5. The case it won yesterday was for a patent filed by the University of Rochester covering Cox-2 inhibitors, a type of arthritis drug that includes the blockbuster Celebrex, which is sold by Pfizer and Pharmacia (nyse: PHA - news - people ).

    What's the difference between these two patents? Pfizer spokeswoman Mariann Caprino explains that the Cox-2 patent was filed after researchers at the University of Rochester realized that drugs that inhibited an enzyme called cyclooxegenase-2 might fight inflammation without causing gastrointestinal bleeding like many conventional painkillers. Caprino says the Rochester researchers didn't actually propose any chemicals that might do this, however, or even describe a way of finding such chemicals. That job was left to Pharmacia and Merck (nyse: MRK - news - people ), which also makes a Cox-2 inhibitor.

    In contrast, Caprino says Pfizer's patent on PDE-5 inhibitors used to treat impotence describes potential compounds (including Viagra) and ways of finding more. Therefore, the argument goes, similar drugs developed by Bayer (nyse: BAY - news - people ) and ICOS (nasdaq: ICOS - news - people ) may violate this patent. Additionally, Caprino notes, other PDE-5 inhibitors were already known when Pfizer filed this patent; they just weren't used to treat impotence.

    Essentially, Pfizer draws the line of "invention" at the moment when researchers actually figure out how to make a drug. The University of Rochester picked a different "eureka" moment, when scientists figured out exactly what the drug should do. The question is whether the law should allow either of these discoveries to be protected as inventions.

    Both of these patents are weird, or at least counterintuitive. It would be easy to make a host of philosophical or legalistic arguments for either patent. But the purpose of patents is not really all that complicated. They are supposed to encourage invention by giving companies a degree of monopoly over their products, but not squash it by preventing anyone from doing anything similar ever.

    For this reason, Pfizer's PDE-5 patent is a bad idea. Having a whole host of medicines to treat a disorder is a good idea, even if they are similar. For a particular patient, one pill might work where another failed. A good example is a class of cholesterol-lowering drugs called statins; patients have benefited from having a choice of such drugs, including Pfizer's Lipitor and Merck's Zocor. One similar medication, Bayer's Baycol, was taken off the market due to lethal side effects. What if it had been the only statin allowed on the market?

    Some researchers will argue that not allowing them to patent every single discovery makes their research less valuable. But we have the government and drug companies to fund the development of all the small incremental steps that lead to an invention. Pfizer has already made billions of dollars on Viagra--it doesn't really make sense to let the firm define its invention so broadly that patients who don't respond well to Viagra can't try other medicines.
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