Pre-expiry offers to supply after patent term expiry

Patent infringement by pre-expiry offer to supply a product after the patent has expired is an area of acute difficulty in Austria.

In Austria, two lists are of significant importance for pharmaceutical companies who intend to market a new product: the reimbursement list of the Austrian Association of Social Security Institutions (Hauptverband der Sozialversicherungsträger, HVB) and the product list of the Austrian Pharmacists’ Publishing House. The first contains all those products that – upon prescription by a physician – are reimbursed by health funds. The reimbursement list is the key to important sales figures in Austria. One prerequisite for a product to be listed on the reimbursement list is its availability from the moment that the pharmaceutical company applies for the product’s listing.

At this stage, the Pharmacists’ Publishing House product list comes into play. This list contains all products that are distributed by Austrian pharmacies. The HVB accepts the list as proof of availability and also requires it to be presented when applying for the listing of a product onto the reimbursement list…

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