Understanding 'Evergreening': Making Minor Modifications Of Existing Medications To Extend Protections

Patent Challenges And Litigation On Inhalers For Asthma And COPD

Between 1986 and 2020 the Food and Drug Administration (FDA) approved fifty-three brand-name inhalers for asthma and chronic obstructive pulmonary disease (COPD), but by the end of 2022 only three of those inhalers faced independent generic competition. Manufacturers of brand-name inhalers have created long periods of market exclusivity by obtaining multiple patents, many on the delivery devices rather than the active ingredients, and by introducing new devices that contain old active ingredients. Limited generic competition for inhalers has raised questions about whether the Drug Price Competition and Patent Term Restoration Act of 1984, also known as the Hatch-Waxman Act, for challenging patents is adequately facilitating the entry of complex generic drug-device combinations. For the fifty-three brand-name inhalers approved during the period 1986-2020, generic manufacturers filed challenges authorized by the Hatch-Waxman Act, which are known as paragraph IV certifications, on only seven products (13 percent). The median time from FDA approval to first paragraph IV certification was fourteen years. Paragraph IV certifications resulted in approved generics for only two products, each of which experienced fifteen years of market exclusivity before generic approval. Reform of the generic drug approval system is critical to ensuring the timely availability of competitive markets for generic drug-device combinations such as inhalers.

Understanding 'Evergreening': Making Minor Modifications Of Existing Medications To Extend Protections

Recent studies have examined strategic behaviors in the pharmaceutical industry that extend patent and regulatory protection, known alternatively as "lifecycle management" or "evergreening." This literature highlights the extent to which the patent system is increasingly focused on granting new protections for minor modifications of existing innovations. The phenomenon raises questions regarding the value of the trend to society and its potential effects on innovation. Specifically, is there value in tinkering with existing medication, and does that value justify the extensive rewards available with a "golden" patent? Could aspects of the current system be distorting how companies choose to spend their precious innovation time and money? As a society, we may decide that certain parts of the system are valuable and that others require reform, but we cannot make any considered evaluation without understanding how the system works on the ground.