The devil is in the divisional: an analysis of divisional patents, deadlines, declarations and suggestions for future practice

Abstract

This article argues that divisional patent applications and litigation are strategically employed in the pharmaceutical sector to delay generic and biosimilar market entry. These practices are given a legitimate basis in the European Patent Convention and the Patents Act 1977, but recent UK case law shows that their misuse results in deliberate obfuscation of existing safeguards. Nonetheless, patent law should not be passive. The reintroduction of the divisional filing time limit coupled with shorter compliance periods would offer practical administrative steps for shortening the time frame within which divisionals can be filed. Moreover, further clarity surrounding the implementation of the double patenting prohibition would reduce the number of substantially similar divisional patents that are successfully obtained. This article also discusses Arrow declarations at length, before concluding with a brief analysis of the suitability of the abuse of process doctrine for dealing with divisional misuse.