Product Hopping

Authors

  • Michael Carrier

DOI:

https://doi.org/10.5912/jcb795

Abstract

One of the most pressing issues in antitrust law involves “product hopping.” A brand-name pharmaceutical company switches from one version of a drug (say, capsule) to another (say, tablet). The concern with this conduct is that some of these switches offer only a trivial medical benefit but significantly impair generic competition.

The antitrust analysis of product hopping is nuanced. In the U.S., it implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because it involves uniquely complicated markets characterized by buyers (insurance companies, patients) who are different from the decision-makers (physicians).

This article introduces the relevant U.S. laws and regulatory frameworks before exploring the five litigated cases.

Author Biography

Michael Carrier

Michael A. Carrier is Distinguished Professor at Rutgers Law School. He is a leading authority in antitrust and intellectual property law with expertise in the pharmaceutical, high-technology, and music industries. Professor Carrier is a co-author of the leading IP/antitrust treatise, IP and Antitrust Law: An Analysis of Antitrust Principles Applied to Intellectual Property Law (3d ed. 2017, with Hovenkamp, Janis, Lemley, and Leslie). He also is the author of Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law (Oxford University Press 2009, paperback 2011) and the editor of Critical Concepts in Intellectual Property Law: Competition (Edward Elgar Publishing 2011).

He has written more than 90 book chapters and law review articles in leading journals including the Stanford Law Review, Michigan Law Review, University of Pennsylvania Law Review, Duke Law Journal, Vanderbilt Law Review, Minnesota Law Review, Iowa Law Review, Notre Dame Law Review, Emory Law Journal, and Wisconsin Law Review, as well as online journals at Harvard, Yale, Stanford, Michigan, NYU, Penn, Northwestern, Minnesota, and Wisconsin.

Professor Carrier’s scholarship has been cited in numerous court opinions, including in the U.S. Supreme Court, and he has written and submitted amicus briefs on behalf of antitrust organizations and hundreds of professors in the U.S. and California Supreme Courts and Federal, First, Second, and Third Circuits.

Professor Carrier has testified before the U.S. Senate Judiciary Committee and National Academies, given talks to government agencies, and is frequently quoted in the national media. He is a member of the Board of Advisors of the American Antitrust Institute, is a past chair of the Executive Committee of the Antitrust and Economic Regulation section of the Association of American Law Schools (AALS), and served on the 2016 ABA Antitrust Section's Presidential Transition Task Force.

Published

2017-08-30

Issue

Section

Articles