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Journal of Intellectual Property Law & Practice Advance Access published online on May 23, 2008
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpn086
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© The Authors (2008). Published by Oxford University Press. All rights reserved

Crystal clear: a landmark pharma patent victory in Japan

John A. Tessensohn and Shusaku Yamamoto *

Legal context: In a landmark decision, the Intellectual Property High Court of Japan enforced a Japanese pharmaceutical patentee's crystal form patent to stop a Japanese generic drug maker, even though the basic substance patent on its blockbuster antibiotic compound had expired some 5 years earlier.

Key points: Pharmaceutical companies are extremely dependent on rigorous patent protection against relentless generic competition resulting from recently increasing patent expirations. The article provides a snapshot of similar crystal form patent litigation developments in the commercially important pharmaceutical patent jurisdictions such as Japan, the USA, and Europe.

Practical significance: Pharmaceutical patentees can now utilize crystal form or second generation patents as part of their Japanese patent strategy to enlarge the scope or length of patent protection over the product.

Key Words: Pharmaceutical patentees can use crystal form or second generation patents of basic substance patents to stop generic competition in Japan. • When enforcing such crystal form patents, they are subject to the usual patentability attacks like lack of novelty, obviousness, and lack of enablement.

* Shusaku Yamamoto, Japan. Email: jtessensohn{at}shupat.gr.jp


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