REMEDY Act

Generally, entities seeking approval of a new drug must provide the FDA with information on patents claiming the drug or a method of use. Entities seeking approval of a generic drug must certify for each such patent on the reference drug that (1) the patent has expired or will expire before the generic is marketed, or (2) the patent is invalid or inapplicable to the generic drug. If a generic drug applicant certifies that a patent is invalid or inapplicable and a patent infringement suit is timely brought, the FDA is prohibited from approving the generic for 30 months (unless the patent litigation is resolved sooner). Under current law, this 30-month stay applies to patent litigation on any number of patents on a reference drug, provided the patent information was filed with the FDA before the generic application.

Under the bill, when an entity applies to the FDA for approval of a new drug, the entity must select only one patent to be eligible for the 30-month stay. This selection may not be changed or amended. After the bill’s enactment, only patent litigation related to the reference drug’s selected patent may trigger the 30-month stay on approval of a generic.