Journal of Law and the Biosciences, 590–647 doi:10.1093/jlb/lsy022 Advance Access Publication 7 December 2018 Original Article May your drug price be evergreen ∗,1 Robin Feldman Downloaded from https://academic.oup.com/jlb/article/5/3/590/5232981 by Elsevier user on 30 October 2020 Hastings College of the Law, University of California, 200 McAllister St. San Francisco, CA 94102, USA Corresponding author. E-mail:
[email protected] ABSTRACT Presenting the first comprehensive study of evergreening, this article ex- amines the extent to which evergreening behavior—which can be defined as artificially extending the protection cliff—may contribute to theprob- lem. The author analyses all drugs on the market between 2005 and 2015, combing through 60,000 data points to examine every instance in which a company added a new patent or exclusivity. The results show a startling departure from the classic conceptualization of intellectual property pro- tection for pharmaceuticals. Rather than creating new medicines, pharma- ceutical companies are largely recycling and repurposing old ones. Specifi- cally, 78% of the drugs associated with new patents were not new drugs, but ∗ Robin Feldman is the Arthur J. Goldberg Distinguished Professor of Law and Director of the Institute for Innovation Law at the University of California Hastings. Her most recent books in the life sciences are Drug Wars (Cambridge) and Rethinking Patent Law (Harvard). Professor Feldman also has published more than 50 articles in law journals including at Harvard, Yale, and Stanford, as well as in the American Economic Review and the New England Journal of Medicine. Professor Feldman’s empirical work has been cited by the White House and numerous federal agencies.