Brooklyn Journal of Corporate, Financial & Commercial Law


Minal Patel

First Page



Even with advancements in science and technology, pharmaceuticals continue to find themselves tethered to patent protection guidelines that once ensured revenue would continue to flow and provide funding for the next blockbuster drug or antibodies. However, as the Federal Circuit appears to inch towards unpredictability in the realm of patent validity, challenges involving patenting are imminent. In fact, gaps are forming in the ability of pharmaceuticals to further research and develop drugs. This Note proposes a solution that encapsulates a more precise standard supported by economic and policy rationales to determine patent validity. It begins with the general requirements of patenting and reasons why trade secrecy may be more effective as investments in research and development increase. Next, policy rationales of patent protection versus trade secrecy will be explained using the Juno case. Lastly, a solution will be proposed for how courts may consider patent validity cases to protect innovation. Overall, this Note aims to highlight the difficulties between choosing patent protection versus trade secrecy and how investment incentives may contribute to the decision, leaning towards the trade secrecy route.