Navigating the Anticommons for Pharmaceutical Patents: Steady the Course on Hatch-Waxman

25 Pages Posted: 29 Apr 2004

See all articles by Richard A. Epstein

Richard A. Epstein

New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School

Bruce Kuhlik

Pharmaceutical Research and Manufacturers of America (PhRMA)

Date Written: March 2004

Abstract

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

Suggested Citation

Epstein, Richard A. and Kuhlik, Bruce, Navigating the Anticommons for Pharmaceutical Patents: Steady the Course on Hatch-Waxman (March 2004). U Chicago Law & Economics, Olin Working Paper No. 209. Available at SSRN: https://ssrn.com/abstract=536322 or http://dx.doi.org/10.2139/ssrn.536322

Richard A. Epstein (Contact Author)

New York University School of Law ( email )

40 Washington Square South
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Stanford University - Hoover Institution on War, Revolution and Peace

Stanford, CA 94305-6010
United States

University of Chicago - Law School ( email )

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Chicago, IL 60637
United States
773-702-9563 (Phone)
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Bruce Kuhlik

Pharmaceutical Research and Manufacturers of America (PhRMA) ( email )

1100 Fifteenth Street, NW
Washington, DC 20005
United States
202-835-3469 (Phone)
202-835-3414 (Fax)

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