May Your Drug Price Be Evergreen

Oxford Journal of Law and the Biosciences (2018)

58 Pages Posted: 31 Oct 2017 Last revised: 28 Apr 2019

See all articles by Robin Feldman

Robin Feldman

University of California Hastings Law

Date Written: December 07, 2018

Abstract

Presenting the first comprehensive study of evergreening, this article examines the extent to which evergreening behavior—which can be defined as artificially extending the protection cliff—may contribute to the problem. The author analyses all drugs on the market between 2005 and 2015, combing through 60,000 data points to examine every instance in which a company added a new patent or exclusivity. The results show a startling departure from the classic conceptualization of intellectual property protection for pharmaceuticals. Rather than creating new medicines, pharmaceutical companies are largely recycling and repurposing old ones. Specifically, 78% of the drugs associated with new patents were not new drugs, but existing ones, and extending protection is particularly pronounced among blockbuster drugs. Once companies start down the road of extending protection, they show a tendency to return to the well, with the majority adding more than one extension and 50% becoming serial offenders. The problem is growing across time.

Keywords: Patent, Patents, Intellectual Property, Pharmaceuticals, Pharma, Generics, Competition, Drug, Drugs, Exclusivities, FDA

JEL Classification: K2

Suggested Citation

Feldman, Robin, May Your Drug Price Be Evergreen (December 07, 2018). Oxford Journal of Law and the Biosciences (2018), Available at SSRN: https://ssrn.com/abstract=3061567 or http://dx.doi.org/10.2139/ssrn.3061567

Robin Feldman (Contact Author)

University of California Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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