UIC Review of Intellectual Property Law


Jaimin Shah

Citations to This Work

  • Erika Lietzan & Julia Post, The Law Of 180--Day Exclusivity, 71 Food Drug L.J. 327 (2016)


The America Invents Act has put in place quick and efficient mechanisms for challenging granted patents in an Article I adversarial setting. And the Hatch-Waxman Act has been the roadmap for generic drug approval-related patent infringement action in Article III courts. An interesting, heretofore unaddressed question lurks at an intersection of the two pieces of enterprising legislation: What impact should a final decision canceling patent claims under the AIA setting have on the forfeiture of 180-day exclusivity under the Hatch-Waxman Act? The 180-day exclusivity is an important piece in the Hatch-Waxman game of chess. This comment presents both the case for and against pulling the forfeiture trigger on the 180-day exclusivity via the new AIA setting. Going further, the comment highlights pragmatic and policy justifications for pulling the trigger, thereby proposing grounds for a conformant legislative action.