Pay-For-Delay: Who Does the Generic Industry Lobby Represent?

The generic industry lobby, Association for Accessible Medicines (“AAM”), often represents the public interest. In the pharmaceutical industry, it challenges brand drug companies’ anticompetitive conduct. It fights for lower prices for consumers. And it has built up goodwill for its work in these areas. But there is one glaring exception. Brand and generic companies often settle patent litigation. And sometimes they do so with the brand paying the generic to delay entry. To state the obvious, generics do well when brands pay them to stay off the market. But AAM’s fierce advocacy in favor of these “pay-for-delay” settlements has not received the attention it deserves. This essay addresses this gap. It analyzes AAM’s advocacy against congressional pay-for-delay legislation and its briefs in two recent cases involving a Federal Trade Commission challenge and California legislation. The essay concludes that in defending these blatantly anticompetitive deals, AAM does not represent the public interest.

By Michael A. Carrier¹

I. INTRODUCTION

The generic industry lobby, Association for Accessible Medicines (“AAM”), often represents the public interest. In the pharmaceutical industry, it challenges brand drug companies’ anticompetitive conduct. It fights for lower prices for consumers. And it has built up goodwill for its work in these areas.

But there is one glaring exception. Brand and generic companies often settle patent litigation. And sometimes