from the evergreen-desire-to-hang-to-intellectual-monopolies dept
At the heart of copyright and patents there is — theoretically — an implicit social contract. People are granted a time-limited, government-backed monopoly in return for allowing copyright material or patented techniques to enter the public domain once that period has expired. And yet copyright and patent holders often seem unwilling to respect the terms of that contract, as they seek to hang on to their monopolies beyond the agreed time in various ways.
In the case of copyright, this has been through repeated extensions of copyright’s term, even though there is no economic justification for doing so. In the realm of pharma patents, a number of techniques have been employed. One is “pay for delay.” Another is the granting of “data exclusivity.” And a third is the use of “evergreening.” Techdirt wrote about the last of these a while back, so it’s no surprise that companies have continued to “innovate” in this field since then. For example, AstraZeneca is trying to use a variant of evergreening for its anti-cholesterol pill Crestor. As a New York Times article explains:
Crestor is the company?s best-selling drug, accounting for $5 billion of its $23.6 billion in product sales last year. About $2.8 billion in sales were in the United States, where the retail price is about $260 a month, according to GoodRx.com.
Here’s how AstraZeneca hopes to hold on to that lucrative market, even though its patent on the drug is now coming to an end, and it should be entering the public domain:
The company is making a bold attempt to fend off impending generic competition to its best-selling drug, the anti-cholesterol pill Crestor, by getting it approved to treat [a] rare disease. In an unusual legal argument, the company says Crestor is entitled to seven years of additional market exclusivity under the Orphan Drug Act, a three-decade-old law that encourages pharmaceutical companies to develop treatments for rare diseases.
In May, AstraZeneca won approval of Crestor to treat children with the rare genetic disease of homozygous familial hypercholesterolemia (HoFH ). That gives it an additional seven-year patent on the drug, but only for that particular — very small — market. However, the designation means that detailed prescription information about using Crestor to treat children in this way must not be included on the label. AstraZeneca’s clever lawyers are trying to turn that into an extended patent for all uses of the drug:
AstraZeneca immediately petitioned the F.D.A., arguing that if the correct dose for children with HoFH could not be on the generic label, then it would be illegal and dangerous to approve any generic versions for any use at all. That is because doctors might still prescribe the generic for children with HoFH and choose the wrong dose, posing “substantial safety and efficacy risks.”
Needless to say, AstraZeneca was only asking for generic versions to be kept off the market for another seven years for safety reasons, not because doing so would bring it billions more in exclusive sales to the general population. Of course.
The New York Times article goes into more detail about the fascinating legal background to AstraZeneca’s argument here, and notes that other drug companies have tried the same approach in the past, without success. Even if this particular ploy does fail again, we can be sure that pharma companies will be back with other sneaky ways of extending their patent monopolies — implicit social contract be damned.