What OxyContin Tells Us About the Value of “Evergreening” and Patents

Patently BIOtech

A few weeks ago, the  FDA announced that they would not allow generic versions of older versions of OxyContin. The original formulation of OxyContin goes off patent today. The original formulation did not have “tamper-resistant qualities” that prevent people from “crushing, breaking, and dissolution using a variety of tools and solvents.”  The article reports that the decision will keep Teva Pharmaceuticals and Impax Laboratories from making the older version which the FDA has determined is too dangerous for public health.

This article represents one of many examples where further innovation – derogatorily called “evergreening” by certain anti-patent groups – serves critical public health goals. Whether that innovation addresses heat stability, safety, bioavailability or other laudable public health goals, an incentive is required to induce companies to take the original formulation and improve it. Patents serve as that incentive.

Without the patents, companies will have little incentive to improve their – or other’s – existing products.  Policy efforts and laws found in India, the Philippines, and Argentina aimed at prohibiting such secondary innovation are thus quite detrimental to the public health.  There are many original molecules whose benefits can be made more available to those in need by further innovation, such as changes that make use of the products easier for those countries with minimal health care infrastructure. Policy makers should think twice before supporting the anti-patent evergreening movement.

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