{"title":"Pharmaceutical (Re)capture","authors":"Liza Vertinsky","doi":"10.2139/ssrn.3882091","DOIUrl":"https://doi.org/10.2139/ssrn.3882091","url":null,"abstract":"This Article makes the case that pharmaceutical companies, along with other powerful corporate actors in the pharmaceutical industry, are in effect designing their own markets, often at the expense of, rather than in pursuit of, public health. The influence exerted by these corporate actors extends beyond traditional forms of regulatory capture, rising to what this Article refers to as pharmaceutical capture—a concept that encompasses the exercise of holistic and systemic control over the operation of pharmaceutical markets and their regulation. After developing a framework for thinking about pharmaceutical capture, this Article uses the evolution of the opioid epidemic as a case study of capture at work. It argues that the patterns of corporate influence highlighted in the case study are not unique to opioids, but rather are structural features of U.S. pharmaceutical markets. A popular political response to concerns about the power exerted by corporate actors in the pharmaceutical industry has been to pin the blame on government regulation as impeding the discipline of the “free market.” But pharmaceutical markets rely on government regulations to function, and this push for deregulation is in many cases simply an effort to substitute one governance structure for another more favorable to incumbent corporate interests. This Article concludes that it is not deregulation, but rather a redesign of regulation, that is needed to improve the public health impact of the pharmaceutical industry. Drawing lessons from pharmaceutical capture, it suggests guidelines for a regulatory recapture.","PeriodicalId":393649,"journal":{"name":"BioRN: Intellectual Property (Topic)","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124388550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Divided Performance of Patented Methods in Australia: A Call to Codify Procured Infringement","authors":"J. Liddicoat","doi":"10.2139/ssrn.3043270","DOIUrl":"https://doi.org/10.2139/ssrn.3043270","url":null,"abstract":"The US case Akamai Technologies Inc v Limelight Networks Inc brought the patent world’s attention to the issue of if and how a patentee may enforce a method claim against a competitor who performs some of the steps in the method but leaves other steps to be performed by arms-length clients – a scenario known as divided performance. The case raised the possibility that divided performance effectively enables a competitor to use a patented method – yet avoid infringement. This article finds that no Australian patent infringement mechanism clearly creates liability for divided performance; however, it also reveals that the seldom invoked, common law mechanism known as procured infringement plausibly does. As a result, this article argues that procured infringement should be codified in the Patents Act 1990 (Cth) to resolve ambiguity surrounding whether it creates liability, thereby generating certainty for the myriad stakeholders who use the patent system.","PeriodicalId":393649,"journal":{"name":"BioRN: Intellectual Property (Topic)","volume":"178 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116143240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}