Pulling the \u27Trigger\u27 on the Hatch-Waxman Act\u27s 180-Day Exclusivity Using Inter Partes Review, 14 J. Marshall Rev. Intell. Prop. L. 453 (2015)
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
