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Saint Louis University Journal of Health Law & Policy

Document Type

Student Comment

Abstract

Pharmaceutical drugs are the backbone of modern medicine, which makes the continued development of new drugs essential and puts many lives in the hands of the brand-name pharmaceutical companies that develop these new treatments. Currently, antitrust litigation is being used to strike a balance between the innovator’s right to earn a profit and the need for generic drug companies to make these drugs available to the masses that need them. Antitrust law stops brand-name companies from taking over the market and excluding generics, but it should not be used to impose harsh remedies that restrict the thing that we all rely upon: brand-name companies’ motivations to innovate.

The federal districts are split on this issue, and although the facts differ in each case, the courts agree that the presence of consumer coercion is what differentiates permissible competitive strategies by brand-name companies from impermissible, anticompetitive product hopping. Intertwined with the issue of product hopping is how to remedy it. While fines are an appropriate penalty, the Second Circuit’s injunction that forced a brand-name company to continue manufacturing a discontinued and possibly outdated drug is unprecedented and threatens the very thing society must protect—brand-name companies’ abilities to innovate. Product-hopping litigation shows no signs of slowing down, and between the Second Circuit’s far-reaching injunction and the growing possibility of a circuit split, the time is right for the United States Supreme Court to take up product-hopping litigation and issue an affirmative ruling that allows generics to provide people the drugs they desperately need, while also providing brand-name pharmaceutical companies the ability and motivation to continue innovating.

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