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Thursday 3 December 2009
Drug-Makers Paying Off Competitors To Keep Cheap Generics Off Market

Republicans and their allies in the business community talk a good game about the virtues of free-market competition. But, as we’ve seen in the debate over the public option, that stance often goes out the window when corporate profits are at stake.

And now we’ve got another example — one of the sleaziest and most blatantly self-serving yet.

Over the last few years, drug-makers have embraced a startlingly simple tactic for fending off competition from generic brands: paying them off. In a nutshell, the company that holds the patent on a profitable drug strikes a deal with the maker of the cheaper generic brand: you hold off on marketing your generic for several years, and in return, we’ll give you a share of our profits on the drug.

The vehicle for these deals is patent litigation. When a generic drug is approved to come to market, the maker of the more expensive name-brand drug sues the generic for patent infringement. But instead of a conventional settlement, in which the generic pays the patent-holder to settle the claim that it infringed the patent, the payment goes the other way: the patent-holder pays the maker of the generic, in exchange for a pledge to delay bringing the generic to market. That suggests the patent-holder fears its patent wouldn’t hold up in court, as many don’t. And it runs counter to the intent of the Hatch-Waxman Act of 1984, which sought to speed the path of generics to market, and to provide a legal framework for these cases.

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