Navigating the Anticommons for Pharmaceutical Patents: Steady the Course on Hatch-Waxman
25 Pages Posted: 29 Apr 2004
Date Written: March 2004
Much recent work has trumpeted the so-called problem of the anticommons in the patent field, especially in connection with medical tools. That conclusion rests on a mistaken comparison of government bureaucrats who lack strong institutional incentives to issue needed permits, and does not carry over to entrepreneurs who only make money by making deals. The analysis also wrongfully assumes that additional patents create further problems, when in fact many patents help to open up alternative paths through the patent thicket. The elaborate compromises of Hatch-Waxman, which were intended to spur research by strengthening patent protection and then facilitating the turnover to the generic market at patent expiration, represent a sound compromise that should not be dissipated by legislative efforts to undercut the use or duration of existing research patents.
Keywords: Michael Heller, Rebecca Eisenberg, patent protection, biomedical research
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