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« In re Stepan Co. (Fed. Cir. 2017) | Main | Natural Alternatives International, Inc. v. Allmax Nutrition, Inc. (S.D. Cal. 2017) -- Part II »

October 10, 2017


To the comment of "This situation is due in part to strong governmental price controls present in other developed nations, and the steep discounts, patent exceptions and donations granted in developing countries."

My reply: While indeed there is a humanitarian aspect involved in that developing countries may not be able to afford the price of a product (all else being equal), I am firmly against the US artificially subsidizing those self-same developing countries at my personal expense. Let ME decide how and when to be altruistic. Mechanisms (of any flavor) put in place in the "name of" (or playing on the theme of) "but these poor countries would not otherwise obtain the drugs" do not hold water with me.

A further thought is prompted by the comment of:

"Should such legislation pass, the Lexmark decision could prove critical, as it removes patent law as a means to exclude such drug imports."

I am not sure that this is phrased properly. Given that the proper application of exhaustion doctrine ALREADY removes patent law from the ability to "double dip." By double dip, I mean that it is entirely within the control of the seller to whom and for what price to sell. Even in price controlled markets, as (as far as I know), there is no one holding a gun to the head of the seller and forcing them to BE in such markets.

Their choices of markets to engage should not be accompanied with making "developing country" type of altruism a non-choice for me with me as a US citizen forced into higher prices to supplement those lower margin country sales.

Perhaps this is just a round about way of saying that the Lexmark exhaustion case was correct for the principles it maintained.

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