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- Title
THE HOLLOW RHETORIC OF EVERGREENING.
- Authors
List, McKenzie E.
- Abstract
Evergreening -- the act of improving preexisting technology and patenting those improvements -- is beneficial. This Comment focuses on the concept of evergreening, a negative term generally used to criticize the patenting practices of pharmaceutical companies. As explained herein, the term, which is of little analytical value given the absence of the concept from judicial opinions, is conceptually directed to a societally beneficial practice. If used at all, evergreening should be viewed as a positive act. Yet, critics use the term evergreening to argue that patent owners improperly extend the term of an original patent by filing a subsequent patent. According to critics, this strategy hinders generic competition and creates higher priced pharmaceuticals, because patents are issued for "slight" modifications to preexisting drugs. Generic drug manufacturers have recently proposed legislation aimed at reducing the cost of drugs and improving drug access purportedly by curbing evergreening. The proposed legislation will inhibit permissible evergreening and negatively impact drug development. Courts of authority already disincentivize and prohibit meritless evergreening when interpreting Sections 102 and 103 of the Patent Act. To the extent reducing drug prices is the goal, different legislation can accomplish the task more effectively.
- Publication
Jurimetrics: The Journal of Law, Science & Technology, 2021, Vol 61, Issue 4, p495
- ISSN
0897-1277
- Publication type
Academic Journal