Patents are designed to encourage innovation and are effectively state-sponsored bargains which confer time-limited monopoly rights on inventors. As an important Supreme Court ruling made clear, however, such rights are restricted to ideas and products that are genuinely innovative.
The case concerned a pharmaceutical company’s patent in respect of a method by which a drug used for treating erectile dysfunction could be prescribed at a low dose to patients with minimal side effects. The advantage of such low doses was said to be that patients would take a dose of the drug daily and would therefore be freed from the need to anticipate when sexual activity was likely to occur.
A trade rival launched proceedings to revoke the patent on the basis that prescribing the drug at a low daily dose was an obvious development involving no inventive step. The rival’s claim was rejected by the High Court, but that outcome was subsequently reversed by the Court of Appeal, which directed revocation of the patent.
In dismissing the company’s appeal against that ruling, the Supreme Court noted that a prior patent had disclosed that the drug could be used in a wide range of doses. The company’s method would have been obvious to a notional team of skilled researchers when the application to register the patent was made. The obvious target of such a team would have been to ascertain the lowest dose at which the drug was effective and that would only have involved familiar and routine testing.