Publication Date

2026

Abstract

Critics and industry alike agree that something is amiss in the market for medicines: Drug prices continue to rise, while various players point fingers, attributing the problem to different systemic inefficiencies. At the heart of this problem, however, lies the patent system, which provides the power that drives many of the strategic behaviors discussed in the literature.

A Deal’s a Deal suggests that a key element of patent law — obviousness doctrine — has been overlooked in the search for causes and solutions of the many distortions in pharmaceutical markets. This uniquely comprehensive Article examines obviousness doctrine from numerous angles: history of the doctrine, empirical analyses, case studies, and theoretical debates over the role of law reaching back to the late 1800s.

In particular, the authors show that in more than a half-dozen aspects of obviousness, modern case law is in complete disarray, with decisions contradicting each other and contravening the Supreme Court. Next, using both case studies and empirical information, the authors analyze five common categories of patents at risk of obviousness, showing how these patents have successfully extended the time-grant of protection. The authors then illustrate how modern cases contain echoes of jurisprudential theories that harken back to 19th Century Langdellian legal science and 20th Century faith in experts, as embodied in the rise of the administrative state. The authors conclude with prescriptions that will allow obviousness to play its part in preventing trivial patenting, preserving space for competition, and helping create a healthier nation.

Document Type

Article

Publication Title

Ohio State Law Journal

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