The rising costs of prescription drugs are a growing concern for many Americans. The restraint of trade for pharmaceutical drugs is a cause of rising costs for consumers, as companies seek to push potential competitors out of the market to maintain profits. This unlawful restraint of trade will be discussed in this comment. Specifically, this comment will focus on "Pay for Delay" agreements, mostly between generic versus brand name pharmaceutical manufacturers. The proliferation of these agreements only leads to an unsustainable market that discourages innovation and advancement, and promotes fraud, as invalid patents are used as leverage to prevent generics from providing more choices to consumers in a more competitive market. This comment will also address a regulatory structure that can prevent parties from forming "Pay for Delay" agreements, while balancing between respecting the rights of patent holders, protecting consumers, and promoting market competition.
Sam Hensel, Delaying Competition: How Sound Public Policy and Rigorous Antitrust Scrutiny Can Be Applied to Controversial Patent Settlements, 17 J. Marshall Rev. Intell. Prop. L. 655 (2018)