HR 1902 IHCommentsClose CommentsPermalink

To prohibit brand name drug companies from compensating generic drug companies to delay the entry of a generic drug into the market, and for other purposes.CommentsClose CommentsPermalink

April 17, 2007

Mr. RUSH (for himself, Mr. WAXMAN, Mr. MARKEY, Mr. BUTTERFIELD, Mr. DOYLE, Ms. SCHAKOWSKY, and Mr. DINGELL) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concernedCommentsClose CommentsPermalink

To prohibit brand name drug companies from compensating generic drug companies to delay the entry of a generic drug into the market, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the `Protecting Consumer Access to Generic Drugs Act of 2007'.CommentsClose CommentsPermalink

SEC. 2. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RELATED TO NEW DRUG APPLICATIONS.

(a) Conduct Prohibited- It shall be unlawful for any person to directly or indirectly be a party to any agreement resolving or settling a patent infringement claim in which--CommentsClose CommentsPermalink





(1) an ANDA filer receives anything of value; andCommentsClose CommentsPermalink





(2) the ANDA filer agrees not to research, develop, manufacture, market, or sell, for any period of time, the drug that is to be manufactured under the ANDA involved and is the subject of the patent infringement claim.CommentsClose CommentsPermalink





(b) Exceptions- Notwithstanding subsection (a)(1), subsection (a) does not prohibit a resolution or settlement of a patent infringement claim in which the value received by the ANDA filer includes no more than--CommentsClose CommentsPermalink





(1) the right to market the drug that is to be manufactured under the ANDA involved and is the subject of the patent infringement claim, before the expiration of--CommentsClose CommentsPermalink





(A) the patent that is the basis for the patent infringement claim; orCommentsClose CommentsPermalink





(B) any other statutory exclusivity that would prevent the marketing of such drug; andCommentsClose CommentsPermalink





(2) the waiver of a patent infringement claim for damages based on prior marketing of such drug.CommentsClose CommentsPermalink





(c) Enforcement- A violation of subsection (a) shall be treated as an unfair and deceptive act or practice and an unfair method of competition in or affecting interstate commerce prohibited under section 5 of the Federal Trade Commission Act (15 U.S.C. 45). The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of this Act.CommentsClose CommentsPermalink





(d) Definitions- In this section:CommentsClose CommentsPermalink





(1) AGREEMENT- The term `agreement' means anything that would constitute an agreement for purposes of section 5 of the Federal Trade Commission Act (15 U.S.C. 45).CommentsClose CommentsPermalink





(2) AGREEMENT RESOLVING OR SETTLING- The term `agreement resolving or settling', in reference to a patent infringement claim, includes any agreement that is contingent upon, provides a contingent condition for, or is otherwise related to the resolution or settlement of the claim.CommentsClose CommentsPermalink





(3) ANDA- The term `ANDA' means an abbreviated new drug application for the approval of a new drug under section 505(j) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)).CommentsClose CommentsPermalink





(4) ANDA FILER- The term `ANDA filer' means a party that has filed an ANDA with the Food and Drug Administration.CommentsClose CommentsPermalink





(5) PATENT INFRINGEMENT- The term `patent infringement' means infringement of any patent or of any filed patent application, extension, reissuance, renewal, division, continuation, continuation in part, reexamination, patent term restoration, patent of addition, or extension thereof.CommentsClose CommentsPermalink





(6) PATENT INFRINGEMENT CLAIM- The term `patent infringement claim' means any allegation made to an ANDA filer, whether or not included in a complaint filed with a court of law, that its ANDA or drug to be manufactured under such ANDA may infringe any patent.CommentsClose CommentsPermalink

SEC. 3. FTC RULEMAKING.

The Federal Trade Commission may, by rule promulgated under section 553 of title 5, United States Code, exempt certain agreements described in section 2 if the Commission finds such agreements to be in furtherance of market competition and for the benefit of consumers. Consistent with the authority of the Commission, such rules may include interpretive rules and general statements of policy with respect to the practices prohibited under section 2.CommentsClose CommentsPermalink

SEC. 4. FORFEITURE OF 180-DAY EXCLUSIVITY PERIOD UNDER THE FFDCA.

Section 505(j)(5)(D)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(5)(D)(i)) is amended--CommentsClose CommentsPermalink





(1) in subclause (I)(bb)--CommentsClose CommentsPermalink





(A) by redesignating subitem (CC) as subitem (EE); andCommentsClose CommentsPermalink





(B) by inserting after subitem (BB) the following:CommentsClose CommentsPermalink

`(CC) In a declaratory judgment action described in subitem (AA), a court dismisses the action for lack of subject matter jurisdiction, either with or without prejudice.CommentsClose CommentsPermalink

`(DD) The applicant files with the Secretary a covenant by the patent owner that the patent owner will not sue the applicant for infringement with respect to the patent.'; andCommentsClose CommentsPermalink

(2) in subclause (V), by inserting `section 2 of the Protecting Consumer Access to Generic Drugs Act of 2007 or' after `that the agreement has violated'.CommentsClose CommentsPermalink

SEC. 5. NOTICE AND CERTIFICATION OF AGREEMENTS.

(a) Notice of All Agreements- Section 1112(c)(2) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (21 U.S.C. 3155 note) is amended by--CommentsClose CommentsPermalink





(1) striking `the Commission the' and inserting `the Commission (1) the'; andCommentsClose CommentsPermalink





(2) inserting before the period at the end the following: `; and (2) a description of the subject matter of any other agreement the parties enter into within 30 days of an entering into an agreement covered by subsection (a) or (b)'.CommentsClose CommentsPermalink





(b) Certification of Agreements- Section 1112 of such Act is amended by adding at the end the following:CommentsClose CommentsPermalink





`(d) Certification- The Chief Executive Officer or the company official responsible for negotiating any agreement required to be filed under subsection (a), (b), or (c) shall execute and file with the Assistant Attorney General and the Commission a certification as follows: `I declare under penalty of perjury that the following is true and correct: The materials filed with the Federal Trade Commission and the Department of Justice under section 1112 of subtitle B of title XI of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, with respect to the agreement referenced in this certification: (1) represent the complete, final, and exclusive agreement between the parties; (2) include any ancillary agreements that are contingent upon, provide a contingent condition for, or are otherwise related to, the referenced agreement; and (3) include written descriptions of any oral agreements, representations, commitments, or promises between the parties that are responsive to subsection (a) or (b) of such section 1112 and have not been reduced to writing.'.'.CommentsClose CommentsPermalink