[Ip-health] FDA gives Gilead a seven year regulatory monopoly for remdesivir to treat COVID-19, on grounds it is an “Orphan” treating a rare disease

Claire Cassedy claire.cassedy at keionline.org
Mon Mar 23 15:05:01 PDT 2020


FDA gives Gilead a seven year regulatory monopoly for remdesivir to treat
COVID-19, on grounds it is an “Orphan” treating a rare disease

Posted on March 23, 2020 by James Love

Today the FDA granted Gilead Orphan Drug status for remdesivir for the
treatment of COVID-19, on grounds this is a rare disease. The morning of
the designation, the U.S. had confirmed, through testing, more than 35
thousand cases, including 8,477 cases in the past 24 hours. Everyone wishes
this was a rare disease, but unfortunately, it isn’t, and the testing will
certainly confirm that shortly.

This is the U.S. Orphan Drug Act statutory definition for a rare disease:


(2) For purposes of paragraph (1), the term “rare disease or condition”
means any disease or condition which

(A) affects less than 200,000 persons in the United States, or

(B) affects more than 200,000 in the United States and for which there is
no reasonable expectation that the cost of developing and making available
in the United States a drug for such disease or condition will recovered
from sales in the United States of such drug. Determinations under the
preceding sentence with respect to any drug shall be made on the basis of
the facts and circumstances as of the date the request for designation of
the drug under this subsection is made."

So what just happened?

There are patents on remdesivir held by Gilead. But under 28 USC 1498(a),
the US can overcome the patent monopoly, and buy a generic. It can contract
with the generic company to make and import to the US. There is already at
least one generic company that we have talked to that is developing a
generic version. But to sell a drug in the United States, you need FDA

The FDA is not allowed to register an generic version for use for COVID-19
for 7 years under the action the FDA took today, because the U.S.
government did not include an exception to the regulatory monopoly in the
Orphan Drug Act. Congress can and should fix this. There should not be an
exception proof monopoly for rare diseases.

Also, the FDA should be challenged for even declaring COVID-19 a rare
disease, given the expectations of how many people are already infected and
how many will be infected in a few days.

(More of coronavirus/COVID-19 here: https://keionline.org/coronavirus).

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