A Patented Method For Raising Drug Prices

Dennis Crouch, writing in PatentlyO, describes a form of “paper infringement” used in conflicts between branded pharmaceuticals and their generic counterparts. It is a legal fiction that gives the branded drug maker the ability to immediately sue to keep the generic off the market. The lawsuits are considered a form of declaratory relief and no actual damages are available. As Crouch explains, this also means that these cases are not “Suits at common law” and so the right to a jury trial does not apply. The cases are ordinarily decided by bench trial, more often than not by one of the Delaware district court judges. Injunctive relief is notoriously hard to obtain in patent law, but this process will automatically delay any market approval by 30 months if the brand-patentee is the plaintiff.