Patent Law's Reproducibility Paradox

67 Pages Posted: 22 Feb 2016 Last revised: 23 Jan 2017

See all articles by Jacob S. Sherkow

Jacob S. Sherkow

Harvard University; New York Law School; Center for Advanced Studies in Biomedical Innovation Law

Date Written: January 19, 2017

Abstract

Clinical research faces a reproducibility crisis. Many recent clinical and preclinical studies appear to be irreproducible; their results cannot be verified by outside researchers. This is problematic for not only scientific reasons but legal ones: patents grounded in irreproducible research appear to fail their constitutional bargain of property rights in exchange for working disclosures of inventions. The culprit is likely patent law’s doctrine of enablement. Although the doctrine requires patents to enable others to make and use their claimed inventions, current difficulties in applying the doctrine mitigate or even actively dissuade reproducible data in patents. This Article assesses the difficulties in reconciling these basic goals of scientific research and patent law. More concretely, it provides several examples of irreproducibility in patents on blockbuster drugs — Prempro, Xigris, Plavix, and Avastin — and discusses some of the social costs of the misalignment between good clinical practice and patent doctrine. Ultimately, this analysis illuminates several current debates concerning innovation policy. It strongly suggests that a proper conception of enablement should take into account after-arising evidence. It also sheds light on the true purpose — and limits — of patent disclosure. And lastly, it untangles the doctrines of enablement and utility.

Keywords: patent, science, reproducibility, drugs, pharmaceuticals, enablement, utility, intellectual property, clinical tests

JEL Classification: K11, K19, K39, O34, K00

Suggested Citation

Sherkow, Jacob S., Patent Law's Reproducibility Paradox (January 19, 2017). Duke Law Journal, Vol. 66, pp. 845-911 (2017). Available at SSRN: https://ssrn.com/abstract=2735181

Jacob S. Sherkow (Contact Author)

Harvard University ( email )

124 Mount Auburn St.
Cambridge, MA 02138
United States

HOME PAGE: http://https://scholar.harvard.edu/jsherkow

New York Law School ( email )

185 West Broadway
New York, NY 10013
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212.431.2355 (Phone)

HOME PAGE: http://www.nyls.edu/faculty/faculty-profiles/faculty_profiles/jacob-s-sherkow/

Center for Advanced Studies in Biomedical Innovation Law ( email )

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Studiestrade 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/cebil/staff/

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