Médicaments génériques: réduire ou ne pas réduire davatange le monopole des marques?

The French Senate voted on the law ‘Financing the National Social Security for 2010’ which was supposed to amend the Public Health Code by introducing the article L. 5121-10-3 relating to generics and worded as follows:

“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 have been in a position to freely imitate the shape and/or color of the tablets proper to the original marked pharmaceutical.

The planned article however did not went through the filter of the French Constitutional Council which upheld on December 22, 2009, that said provision was contrary to the French Constitution and could not consequently be enacted.

The ground retained by the Constitutional Council is the lack or the very limited effect that the provision in concerns would have on the compulsory expenses of the social security…

The intended exception to pharmaceutical trademarks monopoly is not consequently radically excluded in itself and it might be that it surfaces again at some later stage and out of the particular context attached to the yearly Social Security law… 

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