Senator Kohl has introduced another bill that attempts to ban "pay-for-delay" deals between brand name pharma and its generic competitors. The Senator notes that Waxman-Hatch has been very successful in the past in spurring generic drug competition. He cited that 67% of all prescritpions filled are now for generics although these represent only 20% of the cost outlay. He further claims because of this price disparity, deals between brand name producers and generic makers to delay competition are more profitable than competing in the market -- and therefore these deals will become more common if left unchecked.
Pay-for-delay in the Senator's view (and in the view of DOJ and FTC) are "contrary to free competition, the interests of consumers, and the principles underlying antitrust law." The bill would allow the FTC to initiate an enforcement proceeding against any parties entering an agreement to settle a patent infringement claim in connection with a sale of a drug product. Such agreements will be deemed anticompetitive on their face and the parties involved will have the burden of showing that "procompetitive benefits of the agreement outweigh the anti-competitive effects of the agreement."
This is the thrid straight Congress in which Kohl has introduced such legislation. Let's see if three times is a charm in terms of its passage. See the Patent Doc blog for more.
Posted by Bruce Lehr Feb 3rd 2011.