id	author	title	date	pages	extension	mime	words	sentence	flesch	summary	cache	txt
inlawrev-25507	Magiera, Malissa S.	Leaving the Evergreening Problem to the Patent Experts--The USPTO, the PTAB, and the Federal Circuit	2021	26	.pdf	application/pdf	11501	568	48	Id.; Orange Book: Approved Drug Products with Therapeutic Equivalence Evaluations, supra note 127 (discussing how the purpose of the Orange Book is to identify drug products approved on the basis of safety and effectiveness by the FDA as well as identify related patent and 2021] LEAVING THE EVERGREENING PROBLEM TO THE PATENT EXPERTS 213 that are tied to the primary patent, including secondary patents, should be listed as well.150 In order for a generic drug to get approved, it must file an Abbreviated New Drug Application (“ANDA”) and must certify one of the following: (1) “[t]he drug is not patented”; (2) “[t]he drug patent has already expired”; (3) “[t]he generic will enter the market only when the patent has expired”; or (4) “[t]he patent is invalid or will not be infringed by the generic. THE EVERGREENING PROBLEM A. Exclusivity and Secondary Patents 35 U.S.C. § 154 guarantees an inventor twenty years of exclusivity from the filing date of a patent.30 The exclusivity provides incentives for inventors to present their inventions to the public.31 This motivation draws many inventors away from the trade secret track, as once a trade secret is public knowledge, there is no recourse that is as strong as patent protection.32 The patent system incentivizes innovation and disclosure, allowing the public to consistently improve on society’s discoveries.33 In the pharmaceutical industry, the innovator receives an exclusivity term for providing the public with a beneficial drug, while the public gets access to the drug for the exclusivity period.34 Additionally, after the exclusivity period, the public will likely get access to the drug at a much lower price due to the generic competition entering the market, and the generic company will be able to profit off of the drug while providing it at a lower price than offered by the innovator company.35 The ability for the drug developer to obtain secondary patents on the same drug provides drug developers with an important opportunity.36 While the primary patent protects the active drug, secondary patents can protect ranges of chemicals involved in the active drug, methods of using the drug, formulations, dosages, and methods of manufacturing.37 Generally, secondary patents are granted in order to encourage further discoveries that can result from additional research and development on a known drug.38 Notably, these secondary patents 30.	cache/inlawrev-25507.pdf	txt/inlawrev-25507.txt