For the startup executive eager to dive into the complex world of biologics, understanding the differences between biosimilars and biobetters is paramount. More so, discerning how to navigate the maze of patents surrounding these products can spell the difference between success and stagnation. Let’s decode this.

Introduction: Biologics in Brief

Before diving into the nuances of biosimilars and biobetters, it’s pivotal to comprehend biologics. Biologics are medicinal products derived from living organisms. Unlike traditional small molecule drugs, biologics are larger, more complex molecules that can be proteins, cells, or even gene therapies. They revolutionized medicine, offering treatments for diseases previously deemed untreatable.

The Advent of Biosimilars

Origin and Definition

As biologic patents started to expire, the door opened for the production of biosimilars – these are, as the name suggests, similar to their reference biologic. They aren’t identical, due to the inherent variability in using living organisms for production, but they are highly similar without clinically meaningful differences in safety or efficacy.

Patenting Concerns

Biosimilar patenting isn’t about patenting a new drug; it’s about demonstrating that the biosimilar is as effective and safe as the original. The patent landscape here is a minefield, with ‘patent thickets’ and ‘patent dance’ playing a critical role.

The Rise of Biobetters

Defining Biobetters:

Unlike biosimilars, biobetters aren’t about mirroring the original. Instead, they are improved versions. They might offer better efficacy, reduced side effects, or easier administration.

Patent Landscape:

Biobetters offer startups the chance to patent a genuinely new and improved drug. The emphasis here is on innovation. Demonstrating the superiority of a biobetter can lead to a solid patent portfolio.

Diving Deeper: Differences in Development


Development focuses on proving similarity. This can involve analytical studies, animal studies, and clinical studies. The goal is to demonstrate that any differences from the original biologic don’t affect safety or efficacy.


The development is about differentiation and improvement. It might involve tweaking the molecule to enhance its properties or even altering its delivery mechanism.

Patenting Strategy: Biosimilars

For startups venturing into biosimilars, understanding the patent landscape of the reference biologic is essential:

  • Freedom to Operate (FTO) Analysis: This involves identifying existing patents that could be barriers. It’s not just about the primary patent of the biologic, but also secondary patents – these can be on methods of production, formulation, or even specific therapeutic uses.
  • Inter-Partes Reviews (IPRs) & Patent Challenges: Sometimes, challenging existing patents can be a strategy. This is a complex area, requiring careful assessment of the strengths and weaknesses of existing patents.
  • Avoiding Infringement: If an existing patent seems too robust to challenge, the alternative is to innovate around it. This could involve developing a new production method or even targeting a different therapeutic use.

Patenting Strategy: Biobetters

For biobetters, the emphasis is on showcasing the improved characteristics:

  • Comprehensive Data Collection: Before filing a patent, gather solid data showing the superiority of the biobetter. This could be in terms of efficacy, side effects, or other tangible parameters.
  • Broad Claim Drafting: Given the novelty of biobetters, aim for broad patent claims. This might involve patenting the modified molecule, its production method, and its therapeutic use.
  • Anticipate Challenges: Given the lucrative nature of biologics, expect challenges to your patent. Building a robust patent portfolio with layered claims can help shield against future litigation.

Regulatory Nuances and Their Impact on Patent Strategy

Both biosimilars and biobetters have to navigate regulatory waters, and this can influence patent strategy:

  • Biosimilars: In regions like the US, gaining FDA approval involves demonstrating biosimilarity. Interestingly, some jurisdictions have a patent linkage system, where regulatory approval is linked to patent status. Being aware of this can influence both patent filing and litigation strategies.
  • Biobetters: Regulatory hurdles might be higher since the drug is new. However, the reward is also higher. Gaining regulatory approval can bolster the strength of a patent claim, especially if the regulatory body acknowledges the drug’s superiority.

Global Perspectives: Navigating International Waters

Biologics are a global game. Each region has its nuances when it comes to both patents and regulatory approvals:

  • Biosimilars: In Europe, the EMA has its guidelines, which slightly differ from the FDA. Understanding these regional differences is key for a global patent and market strategy.
  • Biobetters: Since these are novel drugs, international patent filing becomes crucial. Considerations like the Patent Cooperation Treaty (PCT) come into play, allowing startups to tap into multiple markets.

Market Considerations: Exclusivity Beyond Patents

Beyond patents, market exclusivity can also be achieved through data exclusivity and market exclusivity provisions. These grant additional protection periods and can significantly affect the market strategy for both biosimilars and biobetters.

Collaborations and Licensing: Harnessing Expertise

For many startups, entering the biologics space can seem daunting. The sheer complexity of the molecules, combined with the rigorous regulatory requirements, often requires more expertise than a young company might have on board. Collaborations and licensing can be strategic moves:

  • Leveraging Expertise: By collaborating with entities experienced in biologics, startups can tap into years of knowledge. This can accelerate development and increase the odds of success.
  • Licensing Existing Technologies: Instead of building everything from scratch, consider licensing technologies that facilitate the development of biosimilars or biobetters. This could involve platforms for molecule analysis or even proprietary methods of modification.
  • Joint Patenting: When collaborating, ensure clarity on intellectual property rights. Joint patenting can be a way forward, provided there’s a clear agreement on rights and revenue-sharing.

Litigation Landscape: Preparing for Challenges

In the high-stakes world of biologics, litigation is almost a given:

  • Understanding BPCIA: In the US, the Biologics Price Competition and Innovation Act (BPCIA) has provisions specific to biosimilars. Familiarizing oneself with these can offer strategic advantages in litigation.
  • Building a Robust Defense: Whether you’re a biosimilar developer facing challenges from the original manufacturer or a biobetter creator facing competition, building a robust patent defense is crucial. This means having layered patent claims and solid evidence backing each claim.

Biosimilars & Biobetters: Ethical Considerations

While the focus is often on the science and the business, there’s also an ethical dimension:

  • Patient Access: One of the driving forces behind biosimilars is increasing patient access to life-saving drugs. Balancing profitability with patient access is both an ethical and a PR concern.
  • Innovation vs. Reproduction: For biobetters, the ethical question revolves around innovation. Is the improvement significant enough to warrant a new patent, especially when it might limit access to a crucial drug?

Beyond Patents: Building a Brand

A solid patent strategy is just one piece of the puzzle:

  • Market Education: Especially for biosimilars, educating the market about the drug’s similarity and safety is crucial. This can involve outreach to doctors, pharmacists, and patients.
  • Positioning Biobetters: For biobetters, the marketing angle is about superiority. Highlighting the improved features, whether they involve efficacy or reduced side effects, can help in carving a market niche.

The Road Ahead: Predicting the Future

As biologics continue to evolve, so will the challenges and opportunities:

  • Emerging Technologies: Techniques like CRISPR and AI-driven drug design might revolutionize biologics, impacting both biosimilars and biobetters.
  • Global Market Dynamics: As emerging markets grow in purchasing power, their regulatory and patent landscapes will play a more significant role in global strategies.
  • Interdisciplinary Collaboration: The future might see more collaborations between biotech, tech, and even sectors like AI and data analytics. Navigating this will require a broader vision and adaptability.

The Biologics Patent Dance: A Delicate Tango

Venturing into the patent world of biosimilars and biobetters is often likened to a dance. In the U.S., this ‘dance’ is a series of steps that the makers of biosimilars and the original biologics manufacturers must follow, as laid out by the Biologics Price Competition and Innovation Act (BPCIA). Let’s break down this tango:

  • Step 1: Sharing Information – Once the biosimilar application is accepted by the FDA, the applicant must share its application and manufacturing process with the original manufacturer within 20 days. This transparency allows the reference product sponsor to evaluate potential patent infringements.
  • Step 2: Patent Lists – Within 60 days of receiving the biosimilar application, the reference product sponsor (original manufacturer) must provide a list of patents they believe may be infringed upon. The biosimilar applicant can then contest any of these patents or add others to the list.
  • Step 3: Infringement Negotiations – The two parties then negotiate to determine which patents will be litigated. If no agreement is reached, the biosimilar applicant will specify the number of patents to be litigated, and each party will then choose the patents from the list to litigate.
  • Step 4: Litigation – Once the patents for litigation are decided, the original manufacturer has 30 days to sue the biosimilar applicant, starting the official litigation process.

Understanding this patent dance is crucial as it impacts the speed at which a biosimilar can come to market and the potential legal battles a startup might face.

IP Landscaping: Scouting the Territory

Before diving into patenting, it’s beneficial for startups to conduct an Intellectual Property (IP) landscape analysis:

  • What is IP landscaping? It’s a comprehensive review of existing patents in a specific area. For biosimilars and biobetters, this would involve analyzing current biologic drug patents, pending applications, and any litigations or disputes.
  • Why is it crucial? By understanding the current patent environment, startups can identify potential gaps, opportunities for innovation, or areas where patent infringement might be a concern.
  • Tools & Resources: Several databases and tools, like Google Patents, the USPTO database, and specialized biotech patent databases, can assist in this analysis.
  • Collaborate with Experts: Engaging with patent attorneys or IP specialists who have experience in biologics can provide valuable insights during this scouting phase.

Global Considerations: Beyond Home Borders

It’s easy to become U.S.-centric when thinking about patents, especially given the size and influence of the U.S. market. However, for startups with a global vision, international patent considerations are crucial:

  • PCT Applications: The Patent Cooperation Treaty (PCT) offers a unified application process for multiple countries. Startups should consider a PCT application to streamline their global patent efforts.
  • Understanding Regional Differences: Different regions have unique patent regulations and processes. For instance, the European Medicines Agency (EMA) has its guidelines for biosimilars, which differ from the FDA.
  • Strategic Country Selection: While it might be tempting to file patents in as many countries as possible, a more strategic approach would involve identifying key markets based on potential revenue, ease of business, and the patent environment.

Conclusion: Charting a Course in Complex Waters

The world of biosimilars and biobetters, with its interplay of science, regulation, and patents, can seem overwhelmingly intricate. However, for the startup executive equipped with knowledge, strategy, and vision, it’s a world rife with opportunities. By understanding the intricacies, anticipating challenges, and continuously innovating, startups can not only navigate this space but truly leave a mark. The future of medicine is biologic, and with the right moves, it can also be yours.