Imron Aly, JD, partner at Schiff Hardin, LLP, explains how lessons learned from Hatch-Waxman proceedings can be applied to Biologics Price Competition and Innovation Act (BPCIA) litigation.
Are there lessons learned from Hatch-Waxman proceedings that you think can be applied to Biologics Price Competition and Innovation Act [BPCIA] litigation?
Yes—I would say that the BPCIA litigation is Hatch-Waxman on steroids. The reason I can say that is because we’re seeing a lot of brand-versus-brand interactions. Amgen, Pfizer…they all want to get into the biosimilars game, when in historical times, not so long ago, they were all making brand drugs, trying to stave off competition.
So what you’re going to now see is a lot of emerging trends about any ideas people had at Hatch-Waxman, where, from a generic company point of view, they’d have to pick and choose to prioritize specific arguments to fit within tighter budgets, now, on a brand-versus-brand larger scale, we can leave no stone unturned and be able to investigate a lot of issues and really dig down into the dip issues of invalidity, prior sale, prior use, anything that goes to invalidating those prior patents in the biosimilars world.
And those are things that are from the Hatch-Waxman space, but carried over really to a further extent on the biosimilars side.