Rebutting Obviousness in the Pharmaceutical Industry: Secondary Considerations of Analogs

Pharmaceutical companies depend on patent protection to recuperate the high costs of research and development. In regards to the patentability of structurally related compounds, the courts must decide whether a compound is obvious in view of its structurally similar prior art. In general, a compound is non-obvious over the structurally related prior art if the compound exhibits unexpected results. However, placing primary emphasis on a compound\u27s unexpected properties is out of step with the realities of drug development. For example, during drug development, chemists will modify a compound\u27s structure until they produce a compound that exhibits optimal pharmakinetic properties. This iterative process relies on the perseverance of scientists to pave the road to drug discovery-not unexpected results. This Note advocates for the elevation of the failure of others to make a drug that benefits society and the long-felt but unmet need for that treatment in the obviousness inquiry. These factors highlight the underappreciated realities of the drug discovery process, the immense effort that precedes a drug\u27s delivery to market, and the profound effect pharmaceuticals can have on disease treatment. In giving greater credence to the failure of others to develop a drug and the unmet need for that treatment, courts can resolve the current disconnect between the laboratory and patent law. By rewarding innovators that embark on a logical research plan that ends in the development of a beneficial drug, patent law will encourage companies to invest in drug development and produce drugs that benefit society