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Name: Dr. Bhumika Aggarwal
Student ID: 2224325
Project topic: Branded versus Generic Medicines: cost-saving and life-saving: A review of the
difference
Faculty supervisor: Prof. Unni
Course Name: Executive Program In International Business
Institute: Indian Institute of Management Calcutta
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Literature Review
Databases searched: ssrn.com
Search terms used: branded versus generic pharmaceuticals
Total hits: 130
Relevant hits: 53
Introduction:
Seven years after Novartis, a global pharmaceutical company filed for a patent for its drug
glivec in India (Novartis 2006; Novartis 2012); the application was rejected by the Supreme
Court of India under Section 3(d), introduced in April 2005 into the Indian patent law. This
decision re-ignited the discussion about several issues:
1. Do patents obstruct the access of affordable healthcare to patients2. Are patents and generics adversaries3. Do globalpharmaceutical majors use patents as life-cycle management tools.
Medicines called generic medicines or generics are defined by the World Health
Organization (WHO) as a pharmaceutical product, usually intended to be interchangeable
with the innovator product, marketed after the expiry of patent or other exclusivity rights.
This paper aims to address the understanding of patents briefly, and whether court rulings as
above promote or mar innovative companies from entering the developing countries /
emerging markets like India. The paper is organized into 5 sections. The first section is the
summary of the literature search and review from the ssrn.com database. The second section
takes up some theoretical considerations for the strategies used by both branded companies
and generic manufacturers with examples, an outline of the commonly used terms/ acts / laws
with respect to generic medicines. The effect of entry of generics into the market and the
current generics scenario globally are described in the third section. The fourth section
presents a detailed debate about HIV/AIDS and the availability of branded versus generic
medications. A discussion of the implications appears in the fifth and final section of the
paper.
1.0 Literature search and summary
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Branded companies invest millions and spend ten years on average to bring a new drug
treatment to market. On the other hand, generic manufacturers focus on two critical factors
to demonstrate the clinical bioequivalence to the innovator drug and to be the first to file their
Abbreviated New Drug Application for regulatory review and approval.
The market entry strategy employed by generic manufacturers are driven by two key factors:
the competitive advantage and the competitive scope.
These factors then shape the cost leadership, differentiation and focus of the generic industry
to segment the entry strategy in markets, the power of the buyer and the supplier, and the
potential competition.
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Manufacturers of generic medicines simplified the treatment of several diseases in developing
countries on a mass scale through provision of reasonably priced, quality-assured medicines.
This is changing with implementation of the World Trade Organization (WTO) Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS), and intellectual property
measures being discussed in regional and bilateral free trade agreement negotiations.
India once positioned as the pharmacy of the developing world, was obliged to modify itspatent law to allow product patents on medicines to comply with the WTO Agreement on
TRIPS. Now, there is a threat that the limited policy space that remains will be further
constricted by bilateral or regional free trade agreements.
The economic effect of generic versus patent drugs
Depending on the side of the economic equilibrium, this entry of generics into the market can
be a positive (for patients, medical organizations, governments) or negative (branded
manufacturers) market development. Using the laws of economics, it can be concluded that
with an increase in supply of generic drugs, the price of these drugs (and their branded
counterparts) will lower.
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2.0 Strategies used by both branded companies and generic manufacturers
2.1 Approaches used by pharmaceutical companies to delay generic drugs.
Patent Infringement Litigation: The patentee or licensee of the patentee sues other
companies for e.g. a generic company that manufactures, imports, uses, sells, or offers for
sale patented technology without permission/license from the patentee, during the term of the
patent.
This strategy used by the innovator pharma company can at time backfire. In 2010, Abbott
Laboratories and Fournier Laboratories were sued by 24 states for filing patent infringement
suits meant to prevent generic versions of Tricor, a cholesterol fighting drug, from reaching
the market.
http://pharma.about.com/od/FDA/a/2012-Renewal-Of-The-Prescription-Drug-User-Fee-Act-Pdufa.htmhttp://pharma.about.com/od/FDA/a/2012-Renewal-Of-The-Prescription-Drug-User-Fee-Act-Pdufa.htm7/30/2019 Branded Versus Generic Version 1 August 2013
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Evergreening:Branded drug companies try methods to extend their drug patents by
making improvementssuch as making different dosage formulations or new delivery
methods to the original drug.
India, Brazil, Thailand, and South Africa are the few countries with laws against
evergreening. The Indian Patent Act, amended by the Patents (Amendment) Act 2005, states
that drugs cannot be patented if they result from the mere discovery of a new form of a
known substance which does not result in the enhancement of the known efficacy of that
substance. This has allowed the continued production of cheap generic versions of drugs by
Indian companies. And this was the reason for the Supreme Court judgment on the Novartis
casethe molecule glivec did not show enhanced efficacy over the original imatinib and
was only a minor modification of the original drug; granting a patent would mean declining
generic companies from making and marketing the drug and hence its being available as an
affordable and accessible medication to cancer patients.
Authorized Generics: Many drug companies license medicines going off-patent to another
company or a subsidiary that will sell the drug as an authorized generic. These authorized
generic agreements defeat the purpose of laws to allow lower priced drugs reaching the
patients.
e.g., Johnson & Johnson manufactures and supplies authorized generic versions of the
attention deficit hyperactivity disorder (ADHD) drug Concerta to Watson Pharma, which
distributes the authorized generic product in the United States. Watson Pharma also has an
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agreement with Cephalon Inc. to sell the authorized generic version of Amtrix for the control
of muscle spasms.
Pay for Delay: Also called as reverse payment arrangements, an innovator/ branded
company will compensate a generic competitor company to delay introduction of its generic
drug. This could also include incentives to make it attractive for a generic manufacturer to
delay market entry, including allowing the generic company to sell in some markets without
any legal challenge.
e.g., Pfizer tied up with Ranbaxy Laboratories to keep it from introducing a generic version
of Lipitor, its cholesterol fighting drug.
2.2 Strategies adopted by generic companies against the branded drugs:
Six-Month Exclusivity for Generics: Under the Hatch-Waxman Act, generic manufacturers
that are first to file and gain FDA approval for a generic are granted 180 days of market
exclusivity, wherein no other generic competitors can enter the market. During this period,
generic companies price their drugs as high as the branded drug. Prices begin to drop only
after other generic competitors enter the market. Generics that entered the market with this
exclusivity in 2010 included losartan, zolpidem, etc.
Pediatric Exclusivity for Brands: of an additional six months beyond the existing marketing
exclusivity and patent periods. To qualify for pediatric exclusivity, the manufacturer must
submit study results that assess the safety and effectiveness of new drugs and biological
products in pediatricpatients."
Generics Tend to Win Patent Challenges: Generic manufacturers willing to take on the risk
and the expense of a court battle to challenge patent exclusivity generally win.
2.3 Two types of medicine patents exist:
Process patent - only the process of manufacturing of the medicine can bepatented.
Advantage of a process patent: molecule itself is not patented and other companies
can manufacture the same molecule using a different manufacturing process. In this
case, competition keeps medicine prices low.
http://www.nytimes.com/2008/06/18/business/worldbusiness/18iht-19drug.13813132.html?_r=1&scp=4&sq=Hatch-Waxman%20Act&st=csehttp://pharma.about.com/od/Sales_and_Marketing/a/The-Rise-Of-Lifestyle-Drugs.htmhttp://pharma.about.com/od/B/g/Biobetter.htmhttp://pharma.about.com/od/B/g/Biobetter.htmhttp://pharma.about.com/od/Clinical-Trials/a/Opportunities-And-Challenges-Of-Pediatric-Clinical-Drug-Trials.htmhttp://pharma.about.com/od/Clinical-Trials/a/Opportunities-And-Challenges-Of-Pediatric-Clinical-Drug-Trials.htmhttp://pharma.about.com/od/B/g/Biobetter.htmhttp://pharma.about.com/od/Sales_and_Marketing/a/The-Rise-Of-Lifestyle-Drugs.htmhttp://www.nytimes.com/2008/06/18/business/worldbusiness/18iht-19drug.13813132.html?_r=1&scp=4&sq=Hatch-Waxman%20Act&st=cse7/30/2019 Branded Versus Generic Version 1 August 2013
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Product patent - the drug molecule is patented.Disadvantage: Increased patent protection for medicines are key features of new
agreements and newer medicines, especially for diseases such as HIV/AIDS,
tuberculosis and infectious diseases, resulting in them being more expensive (WTO,
1995).
2.4 Commonly used terms/ acts / laws with respect to generic medicines
The Waxman-Hatch Act (Drug Price Competition and Patent Term Restoration Act of 1984)
eased the testing requirements for entry by generic drugs, accompanied by the expiration of
patents on a large number of branded drugs is altering the competitive dynamics of the
pharmaceutical market place. The act echoes the determination of policy makers to
concurrently address issues of price control and technical progress. The 1984 Act:
Increased returns to innovation by extending the period of patent protection to take intoaccount the time between receipt of a patent and FDA approval of a drug for sale in the
market.
Reduced the testing requirements for approval of new generic brands of existingchemical entities, thus reducing entry barriers in markets where patents have expired
(Frank et al 1995).
The Doha Declaration on the TRIPS Agreement and Public Health (2001) adopted by the
WTO reaffirmed flexibility of TRIPS member states in circumventing patent rights for better
access to essential medicines (Alsegard 2004; Scherer et al, 2002).
Section 3(d) of the Indian patent law (2005): This section states that inventions that are mere
"discovery" of a "new form" of a "known substance" and do not result in increased efficacyof that substance are not patentable. This implied that India did not support patents for
inventions which were minor modifications and prevented undue monopoly during the
extended period of patent protection by the company.
3.0 Effect of entry of generics into the market and the current generics scenario
3.1 Increasing share of the generics market in developed countries
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Possible reasons of increasing generics market share not only in the developing countries but
also, in the developed world include:
Loss of patents of drugs Some percent of patients not covered by insurance Generic drugs / medications approved by the regulatory bodies like the FDA / EMEA
etc. as efficacious and safe as the branded versions of the medications
Increasing price competition to the branded drug due to the presence of multiplegeneric versions of the drugs in the market
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Factors promoting the use of generics include:
1. Economic factors-a. support by government and private health sectors,
b. Retail pricing mechanisms that favour use of generics andc. Reference pricing for reimbursement programs.
2. Supportive legislation and regulation-a. Regulatory measures favouring generic prescribing and substitution and
b. The requirement that labels and drug information contain generic names.3. Public and professional acceptance and4. Quality assurance (Kaplana et al, 2012)
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The generics sector is fast growing, primarily driven by an increasing demand for cost
effective medicines and availability of high value products.
3.3 India and the generics industry
India has more generic drug-manufacturing facilities approved by FDA than any country
other than the US! India has developed a world-class generic drug manufacturing sector with
major generics firms such as Cipla, Ranbaxy, Reddy's Laboratories, etc. in the absence of
patent-law restraints before 2005 (Mdecins Sans Frontires, 2012).
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With the introduction of patent laws in India, will patients around the world be at risk of
losing the biggest source of accessible, affordable and lifesaving generic drugs.
Fortunately, this plausible risk is minimal, due to the public health measures of the Indian
government.
Price controls on essential medicines (since 1970) and reports suggest that this list ofdrugs will be expanding.
Patent coverage for pharmaceutical products will apply only to applications filed withthe Indian Patent Office on or after January 1, 1995.
Any Indian generics company that began to manufacture a drug before 2005, whichwas subsequently covered by an Indian patent, can continue to make and sell that
drug, though it might have to pay royalties established by the government to the
patent holder.
Compulsory licensing - Generics firms can legally copy patented drugs for export tothe least-developed countries, which lack domestic manufacturing capability
(Mueller, 2007; Bhargava et al 2006).
The loopholes:Neither the Indian patent statute nor its implementing rules define efficacy.
They give the patent office no guidelines for applying the new test. TRIPS requires that
patentable inventions be new and involve an inventive step. TRIPS does not define
inventive step.
4.0 HIV/AIDS and the generics industry
Indian generics companies, supply 84% of the HIV/ AIDS drugs that Doctors without Borders
uses to treat 60,000 patients in more than 30 countries (Mayer, 2005).
India has emerged as a world leader in generic pharmaceuticals production, supplying 20% of
the global market for generic medicines. Indian generic producers supply the majority of ARVs
in developing countries (Reich, 2005).
Even today, the most of the people in low and middle income countries have been treated with
generic medicines against HIV/AIDS produced by Indian generic manufacturers not
constrained or hampered by patent and other intellectual property restrictions (Mdicins sans
Frontires, 2006).
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Till 2009, the FDA and WHO Prequalification Programme approved or pre-qualified 57 adult
fixed-dose combinations and 31 paediatric anti- HIV/ AIDS tablets produced by Indian generic
manufacturers but only eight adult fixed-dose combinations and 14 paediatric anti- HIV/ AIDS
tablets produced by non-Indian and originator manufacturers (Waning et al, 2010).
This absence of intellectual property barriers additionally brought about the development of
improved formulations of existing approved drugs, such as paediatric dosage forms and fixed-
dose combinations combining two or more medications against HIV/ AIDS into one tablet.
This has kept the market share increasing for the generic medications through the years, with
the aim to reduce the burden of diseases like HIV/ AIDS at affordable prices with accessiblemedicines (Waning et al, 2009).
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Generic competition acts as a catalyst for price reductions and the start of differential pricing
programs. The fall in the price of first-line combinations of stavudine (d4T), lamivudine (3TC),
and nevirapine (NVP) from over $20,000 in 2000 to $90 in 2010 and the start of multiple tiered
pricing programs by large ARV manufacturers is attributed largely to generic competition by
some authors. (Wilson P 2010).
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5.0 Discussion and conclusions
5.1 The challenge today
Future scale up of the existing generic medications and development of generic formsof recently recommended medicines against diseases like HIV /AIDS and others in
the developing (low and middle income countries) will possibly be hampered until the
generic producers are able to provide the dramatic price reductions and improved
formulations witnessed in the past.
The restraint on government spending has affected generics, with many countrieslowering the prices of generic medications through cuts in reimbursement rates or
contract tendering with a resultant curbing of margins for the generic manufacturer.
5.2 Why branded and generics could and should go hand-in-hand; the concept of co-
existence
5.2.1 The burning question: Do patents / regulations discourage innovation:
Branded
vs
Generics
Branded company innovates(value creation through
breakthroughs)
Branded
company getspatent
On patent expiry,generics enter market
(value creation throughcompetition
Brandedcompanies lose
revenue andhence put in
money to
innovate moreproducts
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5.2.2 The advantages of generic medicines:
They usually cost a very less than the price of branded drugs, sometimes as much as80% to 85% less.
Generic drugs are under the same governance as branded drugs and must adhere to thesame standards. When branded drugs go off patent, the market is opened up to generic
versions. After a patent expires, pharmaceutical companies come under pricing pressure
due to competition from their generic equivalents.
In last few years there has been a tendency towards alliance, both within the different players
in the generics industry itself, and also between the generics industry and the branded /
innovator dug companies. This has been a trend more because of necessity, reflecting both
the difficult economic environment and the slowdown in development of innovative drugs.
Branded companies are now taking an increased interest in the dynamic generics market as
an aftermath of increasing revenues being spent on development of innovative products and
at the other end the huge profits being generated from generics
(http://www.reportlinker.com/ci02261/Generic-Drug.html) .
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5.3 Recommendations of this report:
1. Reliable quantitative estimates of the role of generics in the global drug supply areneeded to understand potential effects of such measures on treatment of life-threatening
diseases such as cancer and HIV/AIDS, especially in developing countries.
2. Differential Pricing: (also called tiered pricing) is the revision of product/ medicineprices on the basis of the purchasing power of consumers in different geographical or
socio-economic segments. Differential pricing could be a very effective strategy
To improve access to essential medicines in low and middle-income countrieswhere most patients pay for medicines out-of-pocket and therefore cannot
afford prices comparable to high income markets.
Additionally, a well-executed differential pricing system can lead toincremental sales for the pharmaceutical manufacturers (Scherer, 2002; WHO
Differential pricing report 2010).
3. Free trade agreements creating novel intellectual property commitments can not onlyincrease drug prices and impede the development of acceptable dosage forms but also
delay access to newer and better drugs for widely prevalent diseases. Such measures
can challenge the international goal to achieve worldwide access to medications for
diseases.
4. To be given marketing permission it be made mandatory that a generic product mustdemonstrate bioequivalence to a reference/ innovator/ branded / standard medicine.
5. Negative perceptions about the quality of generic medications need to be put to rest ina collaborative effort by stringent regulatory processes, ownership and accountability
of the generic manufacturers and support from government sector.
6. Compulsory licensing: authorization permitting a third party to make, use, or sell apatented invention without the patent owners consent. Under TRIPS, the patent holder
is forced to allow a local entity to produce the patented product in a number of
circumstances such as in case of national emergencies and public health crises such as
HIV/AIDS, tuberculosis and malaria etc., prior negotiation with the patent holder is not
required for voluntary licensing. At WTO in 2003, members agreed that developing
countries without manufacturing capacity could import generic variants of drugs under
patent to address public health threats such as malaria, HIV/ AIDS, or tuberculosis. The
agreement enables low-income countries to import generics from medium-income
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countries rather than being forced to set up domestic production to have access to
medicines (Danzon 2003, Hellenstein 2004).
7. India and its trade partners, along with international organizations, donors, nationalgovernments, civil society and pharmaceutical manufacturers should ensure that there
is sufficient support and understanding for the generic industry to continue its pivotal
role in supplying developing countries/ emerging markets with accessible, affordable,
quality generic medicines rather than agreeing to inappropriate intellectual property
obligations.
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