Download this Paper Open PDF in Browser

Death from the Public Domain?

12 Pages Posted: 16 Dec 2010  

Kevin Outterson

Boston University School of Law

Date Written: December 15, 2010


In his recent article in the Texas Law Review, Ben Roin advances the claim that pharmaceutical innovation and the public’s health are harmed by the doctrines of non-obviousness and novelty. He does not mince words, labeling the nonobvious requirement as “perversity” with a “pernicious” effect on drug development. In his view, these standards pose an insurmountable barrier for drug companies seeking to commercialize inventions already in the public domain. He claims that valuable, life-saving drug ideas languish in the public domain because the companies face high barriers to entry from the FDA, but potential free riders are encouraged through the generic Abbreviated New Drug Application (ANDA) process. A major example given in the article is Ultracet, but in that case the public domain did not hinder commercialization of the drug. His second major argument suggests that FDA-administered data exclusivity periods are the best response to this problem. This brief Comment will challenge both aspects of Roin’s argument and then briefly propose alternatives for addressing the free rider problem.

Keywords: Antibiotic, Antimicrobial, Resistance, Pharmaceutical, Innovation, Intellectual Property, Abbreviated New Drug Application (ANDA) Process, Public Domain

JEL Classification: H41, H51, I18, K11, K32, K33

Suggested Citation

Outterson, Kevin, Death from the Public Domain? (December 15, 2010). Texas Law Review (See Also Online Supplement), Vol. 87, pp. 45-55, 2010; Boston University Law & Economics Research Paper No. 10-45; Boston University Public Law & Legal Theory Research Paper No. 10-45. Available at SSRN:

Kevin Outterson (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Paper statistics

Abstract Views