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« Biotech/Pharma Docket | Main | Judiciary Committee Votes on Patent Reform Bill »

February 02, 2011


Our government can do all kinds of acts and dances but asking business to limit their profits in against the fundamentals of economics. I had indicated this earlier. Link: http://pharmachemicalscoatings.blogspot.com/2010/07/pharmaceutical-reverse-payments-and.html

There are ways to lower costs and they are discussed in the link.

I don't know why he doesn't just come out and say the words "It is collusion at its finest, collusion where we don't have an explicit law banning it".

The most significant mechanism of abuse that has spawned these reverse payments agreements is that section of H-W granting first-to-file generics 180 days of market exclusivity upon ANDA approval. If H-W could be amended to start the clock running on the exclusivity period within a fixed amount of time (30-60 days?) after ANDA approval, and not on the commencement of generic marketing, that would largely remove the incentive to do reverse payment deals.

Banning reverse payment settlements is a bad idea. A better solution would be to have the 180-day exclusivity roll over to the next ANDA applicant once the first applicant enters into any settlement with the patentee. That would eliminate the incentive to do pay-for-delay settlements. All you have to do is change once sentence in the Hatch-Waxman Act and the problem would be fixed.

Matthew, what then would stop the same payment scenario from happening with second filer as it does with the first?

You do not say why you think the ban is a bad idea. A simple and direct ban would be the BEST way of eliminating the behavior - that is if you want that behavior eliminated.

The reverse-payment issue is heating up, and indeed may even shape up to be one of the hot topics in patent litigation for the next year or so. Of course, one of these cases has got to go up to the SCOTUS before too much longer.

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