When legal conundrums manifest in the arena of pharmaceuticals, they haunt it for decades. Take the industry’s long headline dominating “pay-for-delay” cases; Richard Hernandez of McCarter & English just got word that a case of his involving that issue would be moving into a new phase.
…After pending in the courts since its 1999 filing.
And the specter that is the next generation of legal questions, which may reappear just as long from now, is already taking shape.
These questions involve the standing of “product hopping,” or a brand name drug company’s updating drugs with soon-to-expire patents to give itself a new patented product that, for some time, has no generic equivalent. That allows the company to avoid automatic substitution to the cheaper products of generic competitors.
Like “pay-for-delay,” which dealt with branded companies paying to keep rivaling generic products off the market for a set amount of time, it’s at the intersection of patent and antitrust law.
“And depending on where the courts come down on the issue, the implications are wide,” said Hernandez, who represents branded drug companies. “There are lots of drugs out there for which (product hopping) has occurred.
“There’s potential liability across the entire industry.”