Delay-and-Pay: Prolonging Pharmaceutical Patent Protection Without Paying the “Price”

Abstract This article argues that actors use the patent system as part of a “delay-and-pay” strategy to preserve drug prices for as long as possible by delaying generic/biosimilar market entry – and that they have a significant financial incentive to do so. This strategy is based on the notion that it is much more profitable for patentees to delay generic/biosimilar market entry by way of a patent infringement claim and ensuing injunction, then pay damages to the enjoined party should the infringement claim be defeated. Indeed, patentees have much to gain and little to lose under “delay-and-pay”. My analysis establishes that the money national health bodies spent purchasing the more expensive, patented drug whilst the interim injunction remained in effect is not usually compensated following a patent revocation and discharged injunction. That is neither just, nor fair: the losses of national health bodies ought to be recovered.