The French Senate just voted on the law ‘Financing the National Social Security for 2010’ which will amend the Public Health Code by introducing article L. 5121-10-3 relating to generics and stating the following:
“The owner of an intellectual property right that protects the appearance and the texture of oral pharmaceutical forms of a reference product within the meaning of article L. 5121-1 may not prohibit the oral pharmaceutical forms of a generic drug substitutable to this product under article L. 5125-23, from showing a similar or identical texture or appearance.”
The manufacturers of generic drugs would then be in a position to freely imitate the shape and/or color of the tablets proper to the original marked pharmaceutical. This provision would consequently introduce an impressive exception to trademark monopolies in the pharmaceutical industry. The planned article is currently the hands of the French Constitutional Council – without details available on the extent of the claim at this time – but the provision is likely to succeed. We will monitor the question and further report!