patent law for new medical uses of known compounds and Pfizer Viagar patent.pdf

283 PATENT LAW FOR NEW MEDICAL USES OF KNOWN COMPOUNDS AND PFIZER’S VIAGRA PATENT RICHARD A. CASTELLANO I. INTRODUCTION “[I]nternational outcry” arose concerning China’s commitment to the World Trade Organization (WTO) when the State Intellectual Property Office (SIPO) invalidated Pfizer Inc.’s VIAGRA patent in early July of 2004.1 Amidst mounting criticism and in light of China’s historically lacking IP enforcement, 2 the VIAGRA decision could be mistaken as demonstrative of why not to con- sider foreign direct investment in China. 3 While circumstantial evidence may tend to support State protectionist motives to selectively enforce IP laws, the Juris Doctor Master of Intellectual Property, 2006, Franklin Pierce Law Center, Concord, NH; Bachelor of Science in Chemistry, concentration in Biochemistry, 2003, Frostburg State University, Frostburg, MD. 1 Roger Pilon, China’s Viagra Test, Apple Daily (Hong Kong) 2 (Aug. 11, 2004) (available at /cgi-bin/scripts/printech.cgi/dailys/08-13-04.html) (stating “As this appeal is adjudicated, it is absolutely essential -- for China, and the world that deals with it -- that the proceedings be transparent, for all the world to see, if that huge nation is to become a full and trusted participant in the global economic community. The precondition for participation in that community is respect for property rights and contracts. Intellectual property is no less important than the real property the farmer tills. In fact, in the mod