April 29, 2011

The “Evergreening” Euphemism: A Threat to Technological Innovation

Informed Counsel

“Everything that can be invented has been invented” was the mythic pronouncement of the Commissioner of the United States Patent and Trademark Office, Charles H. Duell, in 1899.  Nonetheless, in the one hundred and ten years since these words were purportedly spoken, inventors have continued to develop innovative new technologies that benefit humanity. Threatening technological innovation, however, include those with the mindset encapsulated in Duell’s remark who utilize the euphemistic term “evergreening” to unduly label as a strategy of prolongments what may in fact be patentable improvements to patents. Evergreening is prevalent in modifications covering different aspects of the same product, particularly in the pharmaceutical industry. These modifications may facilitate the use of a known medication and lead to patient compliance, optimize bioavailability, improve stability, or minimize toxicology and side effects.

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