Evergreen or deciduous? Australian trends in relation to the 'evergreening' of patents
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(Published version)
Date
2006
Authors
Chalmers, Robert Andrew
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Journal article
Citation
Melbourne University Law Review, 2006; 30(1):29-61
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Robert Chalmers
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Abstract
The so-called ‘evergreening’ of pharmaceutical patents has become an issue of major public
concern in the wake of the Australia–United States Free Trade Agreement and the amendments it
requires to the Therapeutics Goods Act 1989 (Cth). The effect of these amendments was to place
additional obligations on manufacturers of generic (unpatented) pharmaceuticals. Some additional provisions were also included in an attempt to safeguard against potentially ‘illegitimate’ patent
infringement action taken by patentees against such manufacturers. This article examines these
provisions and their likely effect on the patent protection strategies adopted by the pharmaceutical industry. It also considers recent responses to these strategies by the patents administration system and the courts — in particular, the decision of Arrow Pharmaceuticals Ltd v Merck & Co Inc.
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Law School
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Copyright (c) 2006 Melbourne University Law Review Association, Inc.