Is Your Biotech Company Dedicated to Strong Patents?

The Lip Service Problem

In 25+ years of working with biotech leadership teams, I’ve heard countless executives assure investors, employees, and boards: “We are committed to strong patents.”

But too often, those words are just lip service. Even well-meaning leadership teams that believe they are prioritizing IP often aren’t. The difference between talk and true commitment comes down to one rarely asked question:

“What percentage of your R&D budget is dedicated to experiments requested by your patent team to build stronger, broader patents?”

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Why This Question Matters

In biotech, an unpredictable art, strong patents don’t issue on words alone. Courts demand supporting empirical data to satisfy enablement and written description requirements. And during prosecution, data is often the key to overcoming prior art rejections.

If your IP team isn’t getting R&D support for patent-strengthening experiments, your portfolio is at risk.

Patent-strengthening R&D isn’t about product milestones. It’s about experiments designed to:

• Broaden coverage (e.g., identifying additional sequences, structures, or formulations).

• Block design-arounds (e.g., testing alternative delivery mechanisms competitors might try).

• Generate surprising results that expose why prior art approaches fail.

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Lip Service vs. True Commitment

• Lip Service: Leadership claims patents are critical, but the R&D budget is focused solely on product development. Patent teams are reactive, left without the data needed to secure broad, enforceable claims that cover the product and potential design-arounds.

• True Commitment: Leadership allocates meaningful R&D resources to IP-driven experiments. Patent counsel and scientists work together strategically to expand claims, anticipate design-arounds, and build competitor-proof portfolios.

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The Hidden Costs of Lip Service

The consequences of underfunding patent-strengthening R&D usually surface only when it’s too late to fix:

• Years after filing, when prosecution collapses for lack of supporting data.

• During diligence, when weak coverage is revealed to investors or partners.

• Or in litigation, when claims are invalidated, leaving competitors free to compete.

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A Real-World Lesson

The Amgen v. Sanofi PCSK9 case is a stark reminder. Amgen’s patents were invalidated for failing to empirically identify enough functional antibodies, even though their lead antibody worked. Sanofi’s competing antibody remained on the market.

The lesson: without dedicating resources to expand and validate claims, you may be building castles on sand.

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A Better Way Forward

There is no universal “right” percentage of R&D budget to allocate to patent-strengthening experiments. It depends on your science and your patenting challenges. But here’s what’s clear:

• If your spend is $0, you are not committed to strong patents.

• A ballpark range is between 1% and 5% of your R&D budget for public companies, and between 5% and 10% for private companies.

• A spend of more than 10% of your R&D budget might be justified if you are within the priority year of your first foundational patent app filing.

• If your IP team isn’t asking for such R&D, they are probably not thinking strategically enough.

At Double Helix Law, we regularly work with clients to identify and request targeted experiments to support broader claims that block design-arounds, and help pave a less bumpy path for portfolio build. We help leadership teams align R&D and IP so their patents form true competitive fortresses, not narrow, fragile claims around a single product.

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Final Takeaway

Words don’t build patent fortresses. Budgets do.

If your company is serious about strong patents, empower your IP team, fund their requests, and make patent-strengthening R&D a deliberate part of your strategy.

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About DHL

Double Helix Law (DHL) has decades of experience building strong patent portfolios for life science companies. Learn more about DHL and meet the team.

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The content on this website (including all pages, articles, and comments) is not legal advice, and does not and is not intended to form or constitute any attorney-client relationship. The content is not a solicitation for business; it is for educational and entertainment purposes only, and reflects the personal views of the author(s) only and not those of any past, present, or future client of DHL. Any content should be double-checked for accuracy and current applicability, and liability is disclaimed for any error or omission.

9/25/25 Published (EJV)