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In recent years the Government has introduced a number of measures to address this.274 However, more needs to be done to reduce costs, particularly those associated with discovery and expert witnesses. The use of administrative decisions needs to be encouraged and use of the courts discouraged. One possible solution that the Panel will consider further is to change the law so that, if an administrative determination is made, this can only be challenged in court if the challenger meets all costs. One difficulty with a solution of this nature is that there is a risk that it could actually result in fewer administrative decisions, with challengers going straight to the courts.
Also, because the current pre-grant opposition process is early in the life of a patented pharmaceutical product, competitors typically do not yet know the value of the market and whether it is worthwhile opposing the grant of the patent. Post-grant opposition may provide a more appropriate option because it can be commenced at a stage when the oxycontin for sale at online pharmacy competitor knows the value of the product. The Panel would welcome suggestions to improve the usefulness and use of nonjudicial forums. Interlocutory injunctions are vital to rights owners to prevent irreparable damage from being done. It is clear from court decisions in these matters that the statutory price reduction and ongoing price disclosure systems of the PBS are important factors in court decisions as to whether interlocutory injunctions are granted in pharmaceutical cases.
The Panel recognises that it is for the courts to judge each case on its merits.
However, changes to the patent certificate requirements may result in fewer injunctions being necessary and reduce costs for all parties. This issue is explored in more detail below under Patent Certificates. The Panel considers that the incentive available to generic manufacturers to challenge patents in the courts is low due to a number of factors. The Australian market is relatively small compared with the US, Europe and Japan and the profit margins of generic manufacturers are lower than originators. This is exacerbated by the lack of special oxycontin for sale at online pharmacy reward or period of market exclusivity for a successful challenger. Because its margins over production cost are slimmer than the originator, a generic manufacturer 'internalises' only a small proportion of the benefits of successfully challenging a patent. Therefore it is often in a competitor's interest to wait and hope that another competitor incurs the cost and risk of a challenge. The Panel considers that some form of extra incentive may be necessary to provide competitors with sufficient encouragement to challenge potentially invalid patents, without removing all the risk for challengers and thereby creating inefficiencies and a litigation industry. There is little evidence to suggest that introducing reasonable incentives to challenge patents would discourage the introduction of new products to the Australian market. The Panel invites stakeholders to provide any examples where this might occur. The Panel notes that in the US the first generic manufacturer to successfully challenge a patent that has been listed in the Orange oxycontin for sale at online pharmacy Book will receive six months of market exclusivity. It therefore obtains a first mover advantage to some extent, although generic products authorised by the patentee can still enter the market.275 A mechanism of this nature has the advantage of being simple to administer and is discussed in more detail below under Patent Certificates.
Arguably the need for such incentives in the US is questionable due to the large market.276 However, the Panel considers that there may be a stronger argument for such an incentive in Australia where the returns available to a generic manufacturer following a successful patent challenge are substantially less.
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