Joanna Brougher Passes on Her Passion for Patents

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If you ever have a question about patents or intellectual property (IP), Joanna Brougher is your go-to expert. The lawyer, professor, author, speaker, and founder of BioPharma Law Group has been practicing since 2008, and she’s particularly fond of educating others.

While patent law is the theme of her career, her degrees in microbiology and public health allowed her to carve out a particular niche in biotech and healthcare law. Brougher has published two books—Intellectual Property and Health Technologies: Balancing Innovation and the Public’s Health and Billion Dollar Patents: Strategies for Finding Opportunities, Generating Value, and Protecting Your Inventions—and currently serves as counsel and IP lead at pharmaceutical company Indivior.

Brougher sat down with American Healthcare Leader to discuss her passion for patent law, the role patent strategy plays in the development of lifesaving products, and what drives her to teach others about her complex field.

What interests you most about patent law?

[At the beginning of my career], patent law just came naturally to me. I felt that I understood it. It was also interesting because it’s a field where you get to work with technologies that the public won’t even get to see for another ten to fifteen years.

The exciting part about patent law is that it is always changing. . . . Since I started practicing, many things about patent law have changed. Section 101 has been turned on its head. We’re seeing more challenges to Section 112, which covers written descriptions. The [America Invents Act] came out under President Obama, and we’re constantly seeing new developments—new things to learn, think, and teach about.

You also have new technologies coming out. Patent law still has to catch up to AI. We’re also seeing new developments [in] how patent law handles new technologies, whether it’s gene therapies or AI-inspired therapies.

How do you keep up with the constant change?

I stay up to date by reading various blogs and staying in touch with my network. I’m often invited to give webinars on new topics, so I have to learn about those topics. I get my information from a variety of sources, focusing on my niche of biotech and pharma.

You wrote Intellectual Property and Health Technologies based on an IP class you taught at the Harvard School of Public Health, then Billion Dollar Patent on patent law shifts in the past decade. What’s been a big career focus for you since publishing these?

Part of what I enjoy doing for companies that I work with is to protect their commercial products in a way that gives them a variety of different protection scopes—and that keeps competitors from entering their space. I find ways to protect their products so that it gives them options and protects them from being vulnerable to different attacks.

What might some of those threats be?

For instance, the changes in the laws. You need to protect your patent in a way that protects you now but also in the event that there is a change in the law.

Antibodies are a great example. [Previously], one could protect an antibody by its function. You could say that the antibody binds to a certain receptor, and that’s how we were going to protect this antibody.

But in 2014, AbbVie v. Janssen showed you can’t protect an antibody by its function anymore. You have to be more specific with your antibody description. A lot of patents became invalidated that way. Then Amgen v. Sanofi made its way up to the Supreme Court last year, and a lot of antibody cases became vulnerable to attacks because of how the Supreme Court came out with that case.

“In whatever role I play, it’s all about teaching. I teach students, I teach the people I work with, and I teach my clients about what can and cannot be done to protect their ideas.”

Joanna Brougher

You don’t want to protect a product, such as an antibody, in only one way. In the case of an antibody, you also want to protect it by its structure, sequences, and other variations. I like to use the example of means-plus-function claiming. It’s a relatively new form of patenting, but it can potentially give you more scope than just protecting an antibody by its structure.

Speaking of 2014, that was also when you founded BioPharma to provide life sciences companies with expert IP advice. What was that like?

Ignorance is bliss when you start your own firm, because . . . you don’t know what you don’t know. It was certainly a steep learning curve. But I already had a small client base to start off with, and I also still had some good contacts from my law firm days who began sending me some work.

The business kept on growing from there, which is always a plus, but there were lots of unknowns. In the patent prosecution world, you have to build your own docketing system and hire paralegals to help you with all the filings, because I certainly was not experienced enough to do the filings on my own. I had to learn how to do that and bring on people who could help me do it correctly.

The right team means everything, especially in work with so many moving parts. What kind of teams are you surrounded by in your work today?

I like surrounding myself with people who are smarter than me! I thrive in a team that brings together individuals with diverse skill sets, who aren’t afraid to think outside the box. We are often faced with complex, challenging questions, so it’s crucial to have team members who can creatively navigate these challenges. Together, we can push boundaries, explore new ideas, and find innovative solutions for our clients.

Teaching is clearly a passion of yours. Can you talk more about what inspires that side of you?

I love working with the next generation of lawyers and students interested in IP. I’ve been teaching since I started my career, first at Harvard, and now at Penn and Cornell. I enjoy teaching students about all the interesting developments in the patent space.

We come across patents in the news all the time, usually negatively when it comes to drug products. We always hear about how patents delay access to drugs and raise drug prices. I want to educate people that those headlines may not always be the full story and make them aware of what the real underlying issues are.

Teaching certainly keeps me on my toes. I also learn a lot by teaching because I’m forced to learn the material well enough to convey it to somebody else. And I get to learn about topics that I don’t necessarily encounter on a day-to-day basis.

Looking back on your career, what do you think your legacy will be?

In whatever role I play, it’s all about teaching. I teach students, I teach the people I work with, and I teach my clients about what can and cannot be done to protect their ideas.

I hope my legacy is that I can inform people about patents: what they are, what potentials lie ahead of us, and what we can do to protect our innovations better. Patents are not just important; they can also be fun! We are seeing more challenges to the patent system here in the US especially. It is important that we protect our innovations, because we want to remain a leader in that space, and patents are one way of getting there.

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This interview was conducted by Noah Johnson and has been edited for length and clarity.

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