Biologics and data exclusivity in TRIPS, U.S., European Union and TPP
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Transcript of Biologics and data exclusivity in TRIPS, U.S., European Union and TPP
Edoardo Di Maggio LL.M. Candidate in Intellectual Property Law Queen Mary University of London Center for Commercial Law Studies
Table of contents
1. TRIPS Agreement Article 39.3
2. The United States of Biologics: Patient Protection and Affordable Care Act (PPACA)
3. U.S.-Thai FTA
4. E.U. Sources of Law
5. The issue of Interchangeability
6. TPP: What to expect?
TRIPS Agreement• Article 39.3: Members, when requiring, as a
condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.
Art. 39.3 Brussels Draft • 4 PARTIES, when requiring, as a condi8on of approving the
marke8ng of new pharmaceu8cal products or of a new agricultural chemical product, the submission of undisclosed test or other data, the origina8on of which involves a considerable effort, shall [protect such data against unfair commercial use. Unless the person submiEng the informa8on agrees, the data may not be relyed upon for the approval of compe8ng products for a reasonable 8me, generally no less than five years, commensurate with the efforts involved in the origina8on of the data, their nature, and the expenditure involved in their prepara8on. In addi8on, PARTIES shall protect such data against disclosure, except where necessary to protect the public.]
U.S. • Distinction between biologics and Small
Molecule Drugs.• U.S. regulate biologics through the Public
Health and Safety Act (PHS Act), as amended by the Biologics Price and Competition Act (BPCA) as part of the Patient Protection and Affordable Care Act (PPACA).
• Small molecule drugs are regulated by the Hatch-Waxman Act.
ObamaCare
• Introduces BPCA on 23 March 2010.• Provides 12 years exclusivity for Biologics.
• Draws a line between “mere” and interchengeable Biosimilars.
4 Years Data Exclusivity
8 Years Marke8ng Exclusivity
Interchangeability• 351 (k) (4) PHS Act: Safety standards for determining
interchangeability: Upon review of an application submitted under this subsection or any supplement to such application, the Secretary shall determine the biological product to be interchangeable with the reference product if the Secretary determines that the information submitted in the application (or a supplement to such application) is sufficient to show that:
• (A) the biological product• (i) is biosimilar to the reference product; and• (ii) can be expected to produce the same clinical result as the reference
product in any given patient; and• (B) for a biological product that is administered more than once to an
individual, the risk in terms of safety or diminished efficacy of alternating or switching between use of the biological product and the reference product is not greater than the risk of using the reference product without such alternation or switch.
Justification of 12 years exclusivity
• U.S. consider 12 years exclusivity necessary to recover the investments (Sen. Orrin Hatch). In fact:
1. 108 months of clinical trials and test data.2. Average expense of 1.2 billion $.3. 6-10 months needed for FDA approval.• Field studies: 14.3 years would be the
ideal period of protection.
• Was it really necessary for Thailand to set a regime of data exclusivity?
• Side letters do not take biologics into consideration.
• As in other FTAs, it is a move to extend what was not reached with the Brussels draft of the TRIPS Agreement.
Directive 2004/27/EC(15) Biological medicinal products similar to a reference medicinal product do not usually meet all the conditions to be considered as a generic medicinal product mainly due to manufacturing process characteristics, raw materials used, molecular characteristics and therapeutic modes of action. When a biological medicinal product does not meet all the conditions to be considered as a generic medicinal product, the results of appropriate tests should be provided in order to fulfil the requirements related to safety (pre-clinical tests) or to efficacy (clinical tests) or to both.
Regulation 2004/726/ECArt. 14 (11): […] medicinal products for human use which have been authorised in accordance with the provisions of this Regulation shall benefit from an eight-year period of data protection and a ten-year period of marketing protection, in which connection the latter period shall be extended to a maximum of 11 years if, during the first eight years of those ten years, the marketing authorisation holder obtains an authorisation for one or more new thera- peutic indications which, during the scientific evaluation prior to their authorisation, are held to bring a significant clinical benefit in comparison with existing therapies.
The issue of Interchangeability• Unlike the United States, European Union lacks of
interchangeability provisions.• According to the European Medicine Agency, the product
can only be comparable.• EMEA Guidel ines (5): “the cl inical biosimilar
comparability exercise is normally a stepwise procedure that should begin with pharmacokinetic (PK) and, if feasible, pharmacodynamic (PD) studies followed by clinical efficacy and safety trial(s) or, in certain cases, confirmatory PK / PD studies for demonstrating clinical biosimilar comparability”.
• O n l y s i n g l e E U M e m b e r s c a n i m p l e m e n t interchangeability within their Jurisdictions.
Article 18.52
• First ever Article of an international Agreement that sets periods of exclusivity.
• It is controversial to interpret.• It refers to Article 18.50 (similar to
Brussels draft of Article 39.3 TRIPS).
18.52 NegotiationsExclusivity periods:
U.S. : 12 yearsJapan and Canada: 8 years
Rest of the countries: 5 – 0 years• All 12 countries were concerned about the
switching of the exclusivity period.• TPP is a trade agreement, hence, should it deal
with data exclusivity?• U.S. “concerns”: Chilling effect on investment and
unchanged prices on biosimilars (Zarxio – Neupogen).
Creative ambiguities
• Article 18.52: Biologics• 1. With regard to protecting new biologics, a Party shall either:• (a) with respect to the first marketing approval in a Party of a new
pharmaceutical product that is or contains a biologic,[60],[61] provide effective market protection through the implementation of Article 18.50.1 (Protection of Undisclosed Test or Other Data) and Article 18.50.3, mutatis mutandis, for a period of at least eight years from the date of first marketing approval of that product in that Party; or, alternatively,
• (b) with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic, provide effective market protection:
• (i) through the implementation of Article 18.50.1 (Protection of Undisclosed Test or Other Data) and Article 18.50.3, mutatis mutandis, for a period of at least five years from the date of first marketing approval of that product in that Party.
• (ii) through other measures, and• (iii) recognising that market circumstances also contribute to effective
market protection.
Edoardo Di Maggio LL.M. Candidate in Intellectual Property Law Queen Mary University of London Center for Commercial Law Studies
Bibliography • Zaide Frias, EMA Head of Regulatory Affairs, SME Workshop, 26.04.2013, EMA. • Shein-‐Chung Chow, Ju C. Assessing biosimilarity and interchangeability of biosimilar products under the Biologics Price Compe88on and Innova8on.
Generics and Biosimilars Ini8a8ve Journal (GaBI Journal). 2013;2(1):20-‐5. doi:10.5639/gabij.2013.0201.004 • GaBI Online -‐ Generics and Biosimilars Ini8a8ve. Efficacy, extrapola8on and interchangeability of biosimilars [www.gabionline.net]. Mol, Belgium: Pro
Pharma Communica8ons Interna8onal:www.gabionline.net/Biosimilars/Research/Efficacy-‐extrapola8on-‐and-‐interchangeability-‐of-‐biosimilars. • Covic, A. et al. Nephrol. Dial. Transplant. 23, 3731– 3737 (2008). • Fenwick & West LLP, A Comparison of US and EU Biosimilars Regimes, 2012 • Henry Grabowski, Genia Long and Richard Mor8mer, Data exclusivity for biologics, Nature Review, Macmillan Publishers Limited, 2011 • Irena Royzman Nathan Monroe-‐Yavneh, TPP Biologics Exclusivity Periods Mantain the Status Quo, Law 360, 2015 • Joeeta Murphy, Patent Term Extensions and Market Exclusivity,
hmp://www.stratagemipm.co.uk/ar8cles/2015/patent-‐term-‐extensions-‐and-‐market-‐exclusivity • Donna M. Gimer, Biopharmaceu8cals under the pa8ent protec8on and affordable care act: determining the appropriate market and data exclusivity
periods, Texas Intellectual Property Law Journal, 2013 • Shein-‐Chung Chow, Assessing biosimilarity and interchangeability of biosimilar products under the Biologics Price • Compe88on and Innova8on Act, Generics and Biosimilars Ini8a8ve Journal, Vol.2, Issue 1, 2013. • Anonimous, Efficacy, extrapola8on and interchangeability of biosimilars, Generics and Biosimilars Ini8a8ve Journal, 2013,
hmp://www.gabionline.net/Biosimilars/Research/Efficacy-‐extrapola8on-‐and-‐interchangeability-‐of-‐biosimilars • Hans C Ebbers, Stacy A Crow, Arnold G Vulto & Huub Schellekens, “Interchangeability, immunogenicity and biosimilars”, Nature America, 2012 • Adrian Covic, Jorge Cannata-‐Andia, Giovanni Cancarini, Rosanna Coppo, Jo˜ao M. Franzao, David Goldsmith, Pierre Ronco, Goce B. Spasovski, Peter
Stenvinkel, Cengiz Utas, Andrzej Wiecek, Carmine Zoccali and Gerard London, Biosimilars and biopharmaceu8cals: what the nephrologists need to know—a posi8on paper by the ERA-‐EDTA Council, hmp://ndt.oxfordjournals.org/ at Queen Mary and Wessield College, accessed on March 5, 2016
• European Medicines Agency Guidelines, EMEA/CHMP/BMWP/42832/2005 Rev1 , 2014 • Ambiguity Leads to Fallacy: Biologics Exclusivity in the Trans-‐Pacific Partnership, hmps://wikileaks.org/tpp-‐ip3/biologics/Ambiguity%20Leads%20to
%20Fallacy%20(Biologics).pdf, 2015 • Pharmaceu8cal, Biotechnology and Chemical Inven8ons Vol. 1 , Edited by Duncan Bucknell, 2011 • Daniel Gervais, The TRIPS Agreement Draving History and Analysis, Fourth Edi8on, Sweet & Maxwell, 2013 • Burcu Kilic, “IP Policy Making in the 21° Century”, Notes taken during the presenta8on held at CCLS on 3 February 2016 • EudraBook, Compendium of EU Pharmaceu8cal Law, European Union, 2015