Abstract: Pharmaceutical companies invest significant resources in identifying and developing treatments for a variety of infectious diseases, including the current worldwide threat of superbugs. It is essential that these companies commercialize these treatments and recoup their investments. Therefore, as a policy matter, it is important to incentivize pharmaceutical companies to reap these financial rewards in order to motivate innovation and research. Patents provide an incentive—a twenty-year term of marketing exclusivity. However, as a result of the Mayo/Alice eligibility criteria that distinguish patent-ineligible laws of nature, natural phenomena, and abstract ideas from patentable inventions, the United States Patent and Trademark Office is likely to reject patents for many superbug treatments, such as antibiotics found in nature. Consequently, other methods of incentivizing the development of superbug treatments, such as delinkage mechanisms, may be necessary.

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