The Federal Circuit appears oblivious to the actual impact its panel decision will have on the future willingness of inventors and investors to undertake the lengthy and expensive process that leads to innovative new drugs. The fundamental reason this country has a patent system is to create incentives for our citizens to discover and develop new technologies and to disclose their work for the benefit of the public. It becomes a cruel hoax when a governmental body such as the court below arbitrarily adopts rules, after the fact, that give to the public the full benefit of an inventor’s disclosure but take away the exclusivity benefit promised to the inventor.
The panel decision of the Federal Circuit in this case, if allowed to stand, will have a severely adverse impact on the scope of patent protection for many new drugs and other types of inventions for which genus claims are essential, and this loss of meaningful patent protection will diminish, if not destroy altogether, patent-based incentives that induce companies and their investors to undertake risky new ventures for bringing such products to market. This is particularly true in the case of startups and small companies operating solely on capital supplied by investors.