Market entrance, patents, and preliminary injunctions: a model of pharmaceutical patent litigation

Pharmaceutical patent litigation in Europe

Expert Opinion on Therapeutic Patents ◽

10.1517/13543776.9.2.181 ◽

1999 ◽

Vol 9 (2) ◽

pp. 181-187 ◽

Cited By ~ 1

Author(s):

Trevor Cook

Keyword(s):

Patent Litigation ◽

Pharmaceutical Patent

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Generic Entry Before the Agreed-Upon Date in Pharmaceutical Patent Settlements

Journal of Competition Law & Economics ◽

10.1093/joclec/nhaa007 ◽

2020 ◽

Vol 16 (2) ◽

pp. 188-219

Author(s):

Keith M Drake ◽

Thomas G McGuire

Keyword(s):

Patent Litigation ◽

Generic Entry ◽

Early Entry ◽

Fda Approval ◽

Drug Patent ◽

Pharmaceutical Patent ◽

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ABSTRACT Drug patent litigation settlements specify a date for generic entry and typically include a so-called acceleration clause allowing the generic to enter earlier in certain circumstances. An agreed-upon date between a brand and a generic with “first-filer” status is particularly salient because this date also affects when other generics may enter. It has been unclear the degree to which acceleration clauses increase competition—by accelerating entry—or decrease competition, by deterring pursuit of entry by potential generic competitors. This paper documents the entry outcome after first-filer-brand settlements by tracking how often acceleration clauses in these settlements in fact accelerate entry. In no case was a first filer’s 180-day exclusivity period accelerated because of a later filing generic winning patent litigation or settling for an earlier entry date. In the cases where early entry occurred, the first filer had lost its right to the exclusivity period, typically by failing to receive tentative FDA approval within 30 months of its filing; or other generics shared first-filer status. An acceleration clause paired with the 180-day exclusivity period appears to effectively deter other generics and, at least in the instances we observed, never to have resulted in an actual “accelerated” entry.

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