In a nutshell
Life sciences is an umbrella term that denotes all of the medical and scientific products and services that fall under the following areas: biotechnology, pharmaceuticals, medical devices, dietary supplements, foods, cosmetics and environmental agents.
For lawyers, the practice area is particularly diverse as it encompasses several areas of traditional practice including regulatory, criminal investigation, enforcement, compliance, competition, intellectual property and many more. Clients range from governments to major global pharmaceutical manufacturers to start-up companies that are inventing new medical drugs.
All of this variety is broken down into three core areas for lawyers: regulatory, intellectual property and corporate. Regulatory work encompasses the likes of market authorization of products, government affairs, competition matters and compliance work. Life on the intellectual property side is focused on protecting clients' patents, while corporate lawyers assist companies with both their everyday and transformative matters, from basic employment needs and governance issues to business-altering M&A deals.
What life science lawyers do
- Assist clients with getting their products to market in various jurisdictions.
- Liaise with the government when there are objections to clinical trials.
- Help companies to improve their manufacturing techniques.
- Advise clients on how to distribute their products in line with healthcare laws.
- Represent clients during patent infringement proceedings.
- Advise on complex contractual relationships like collaborations and alliances.
- Facilitate commercial transactions involving a life sciences element.
- Assist with M&A and venture capital work containing a life sciences element.
- Take the role of lead negotiator in business transactions.
Realities of the Job
- Working hours vary across the three core areas. Regulatory work offers the most flexibility, while the hours experienced by patent trial lawyers – especially as a case heats up – can be intense. Corporate hours, as you might expect, are dictated by the peaks and troughs of the deal cycle, so periods of late nights are followed by lulls of more standard hours.
- “It is important to be a specialist but also to learn about other fields and how they impact on each other, e.g. how the area of product liability might influence regulatory advice,” says Scott Bass of Sidley Austin. “One of the main challenges is keeping up with fast-changing developments and staying informed.”
- This fast pace is at the same time one of the most exciting elements of the practice, Bass feels: “The sector is constantly changing, so there's the opportunity to break new ground often. You get to help industry but also assist governments and consumers in a lot of what you do.”
- Latham & Watkins' Judith Hasko agrees: “I think you have got to have a comfort level with an ever-changing legal and regulatory environment, and you have to be interested and comfortable with change. It is an exciting industry, but people who do well like change."
- “You also have to be commercially sophisticated and have an interest in the commercial drivers as to why a company wants to do something,” Hasko continues. “In my experience you need to work well with your client. They have critical information you need. You need the full input of your client and its your job to do that. It is also challenging to tailor advice so that it makes sense to them. You just need to fully understand their goals. What is also tricky is the ability to keep a lot of different elements in your head about the law and the client's business at the same time when you are negotiating."
- “There is a lot of opportunity in life sciences as the legal frameworks and government's policies are constantly changing," Hasko explains. "This creates opportunities for lawyers. It is very exciting and rewarding to help to move products forward that will help people. It's not a practice for everyone as it can be very technical, but for those who have a connection with the industry I would say go for it.”
- On the corporate side, Covington & Burling's John Hurvitz tells us: “You have an opportunity to be involved in all phases of the deal cycle from structuring to negotiating to implementation. Also, there is a lot of deal activity in the industry so you have an opportunity to work with clients over many years and multiple transactions. These deep and longstanding relationships are very rewarding, both professionally and personally.”
- Hurvitz adds: "A scientific background is useful but not necessary. It is more important to have an interest in the underlying science and technology, as there is ample opportunity to learn about the latest innovations and breakthroughs. The practice is multidisciplinary so to be successful you need to be comfortable working across a range of legal disciplines, such a IP, competition, corporate, and also to have a business mindset. The business issues and legal issues are inextricably intertwined in this practice."
- Life sciences collaborations are, Hurvitz tells us, “very complex. In addition to working across legal disciplines, there are often multiple facets of the deal that have to be managed in parallel. It is like four or five dimensional chess at times. People who are smart, curious, have good memories and attention to detail will do well. You also need to be comfortable in making judgment calls. There are often so many business and legal issues at play in any given deal, that the clients typically look to the lawyers to offer practical guidance."
- When it comes to regulatory work, “the most challenging thing we face in our practice is the challenge faced by industry as a whole: it is an extremely difficult and long process from invention to product,” says Daniel Becker of Fenwick & West. “In a 25-year career only two or three inventions that I've worked on have become a marketed pharmaceutical product. We don't get instant or even near-term gratification.” However, “every time I come to work it's nice knowing that the work I am doing makes a difference. Very few products I work on make it to market, but when they do and you see the positive benefits it is so thrilling.”
- The pandemic has had a profound impact on every industry, but perhaps no other has been in the spotlight as much as life sciences over the past year, with major pharmaceutical giants like Pfizer, Johnson and Johnson, Moderna and AstraZeneca becoming synonymous with vaccines. The growing visibility of life sciences means that there has been a lot of investor interest in the sector in 2021, with PwC reporting that the volume of M&A deals was up 25% in the second half of the year compared to the first half. The Asia-Pacific region accounted for much of that.
- Deal value was also higher in the second half of 2020 according to PwC, with five mega deals accounting for nearly $100 billion combined: AstraZeneca’s acquisition of Alexion Pharmaceuticals, Gilead’s acquisition of Immunomedics, Siemens Healthineers’ acquisition of Varian Medical Systems, Bristol Myers Squibb’s acquisition of MyoKardia, and Johnson & Johnson’s acquisition of Momenta Pharmaceuticals.
- To minimize contact, healthcare has become and will continue to become increasingly digitized. “The acceleration of telehealth and virtual visits has been huge,” says Ira Coleman, managing partner of McDermott, Will & Emery. “Nobody expected this kind of development and adoption for at least another 10 years, but the crisis has pulled the future forward by five years at least - maybe more. We have seen providers go from two telehealth appointments a day, to 5,000 a week.” Alongside the obvious benefits to telehealth (it’s time-saving and cost-effective), we’re likely to see significant legal challenges around data privacy, indemnity, and professional insurance.
- Drug pricing is a central issue in healthcare policy for the Biden administration, with its aim to lower prescription drug prices by enabling Medicare to conduct negotiations for certain expensive medicines, and making it a requirement for drug manufacturers to pay rebates if prices overtake inflation.
- Deloitte predicts that D&I will be a major focus for the sector, both internally and externally. However, this is more than just a labor and employment issue. The report notes that there are significant “racial health disparities,” highlighting a potential growth area as companies look go to “promote inclusion and equity in healthcare and promote research equity in the medtech industry.”
- Software as a Medical Device (SaMDs) has come to the attention of the US Food and Drug Administration (FDA) of late. In January 2020, the FDA uploaded a discussion paper for a new regulatory framework that would apply to the use of SaMDs that use AI and machine learning technology. Expect further debate on the topic and development of regulations that lawyers will be advising clients on.
- 3D printing is being explored as a better way to manufacture cell and tissue products. Drugs and disease models can be tested on 3D-printed tissues instead of on animals or humans.