Exploring Evergreening : Estimating the Cost of Low Patent Standards

Litigated pharmaceutical patents are a valuable source of data on how much inventiveness is required for a patent grant and what are the costs of patents. Although innovation is central to economic growth and the competitiveness of firms, there are few data about either the cost of granted patents or the quantum of inventiveness required for a patent. Two cases of litigated pharmaceutical patents allow investigation of two types of ‘evergreening’ patents – new formulations and closely related chemical variants. Both lead to higher health costs, and in some cases these can be substantial. Both types of evergreening patent point to the very low standard of inventiveness required for patent grant. Although the data refer to Australia, there are implications for patent policy in other jurisdictions too