Professors John Allison and Lisa Larrimore Ouellette’s article on courts’ adjudication of certain patent disputes presents some surprising data: pharmaceutical patents litigated to judgment fare substantially worse on written-description analyses if they are not part of traditional pioneer-generic litigation. This Response engages in several hypotheses for this disparity and examines the cases that make up Allison and Ouellette’s dataset. An analysis of these cases finds that the disparity can be best explained by technological and judicial idiosyncrasies in each case, rather than larger differences among pharmaceutical patent cases. This finding contextualizes the power and limits of large-scale empirical patent scholarship, like Allison and Ouellette’s, and provides a model for how empirical and doctrinal patent scholarship can complement one another.
Jacob S. Sherkow, Describing Drugs: A Response to Professors Allison and Ouellette, 65 Duke Law Journal Online 127-147 (2016)