Title:After Thalidomide – Do We Have the Right Balance Between Public Health and Intellectual Property
Volume: 10
Issue: 1
Author(s): Peter Feldschreiber and Alasdair Breckenridge
Affiliation:
Keywords:
Abridged applications, Adaptive licensing, Benefit risk, Early access, Exclusivity, Patent protection.
Abstract: The current European regulatory and consumer protection legal framework is the legacy of
Thalidomide. The disaster led to the introduction of systematic biological and clinical data to endorse
the safety and efficacy of new medicines.
The European Medicines Directive outlined the pre-clinical, clinical data and product information to
evaluate an appropriate benefit. Risk profile of new medicines and also allowed innovative companies
to extend patent protection and data/marketing exclusivity periods to compensate for the cost for research
and development. However in recent years it has become apparent that the costs and time for
research and development are becoming increasingly burdensome, particularly for new drugs with recently discovered
mechanisms of action for cancers and neurodegenerative disorders. The costs of development and the commercial uncertainty
of such products is reducing commercialisation of these medicines.
There is now considerable debate in the regulatory community as to how this regulatory burden may be eased by making
earlier review of benefit risk and hence earlier access to authorised medicines.
The Courts are moving away from the wide definition of medicinal product to a more nuanced view of the biological and
clinical therapeutic mechanisms to satisfy the 'functional' limb definition in the Directive. This may be a move away from
the rigorous scientific methodology generated after thalidomide.
We discuss the ethical and public health implications of this shift in policy and the implications for intellectual property
mechanisms currently available to protect the commercial needs of companies.
