Other Barks & Bites for Friday, May 10: Congress and Trump Crack Down on Pharma, Amici File Briefs in Acorda, and USPTO to Modify Patent Term Adjustment Procedures

By IPWatchdog
May 10, 2019

https://depositphotos.com/182060190/stock-photo-dog-reading-newspaper-on-a.htmlThis week in Other Barks & Bites, IPWatchdog’s IP news roundup: the House of Representatives passes drug patent legislation, while antitrust legislation targeting patent-related activities is introduced into the Senate and the Trump administration mandates pricing information for pharmaceutical ads; the Patent Trial and Appeal Board (PTAB) issues a pair of precedential decisions on cases with multiple petitions; the USPTO issues marijuana-related trademark guidelines and a notice on modifying patent term adjustment practices; Gilead strikes a settlement with Teva to bring generic Truvada to the U.S. market in 2020; a new music licensing entity is created in Canada; Fourth Circuit rules that bankruptcy can eliminate damages for trade secret violations; and several amicus file briefs asking the U.S. Supreme Court to eliminate the Federal Circuit’s “blocking patent” doctrine.

Bites

U.S. House Passes Two Bills Targeting Drug Patent Listings – On Wednesday, May 8, the U.S. House of Representatives passed both H.R. 1503, the Orange Book Transparency Act of 2019, and H.R. 1520, the Purple Book Continuity Act of 2019, both of which enact heightened requirements on patents listed for the approval of a drug through the U.S. Food and Drug Administration. Both measures were passed unanimously.

Trump Issues Rule Requiring Drug Pricing Transparency – Beginning this summer, pharmaceutical companies will be required to include the list price of any drug that costs more than $35 per month in television ads. The pharmaceutical industry has argued the rule will confuse consumers, since their out of pocket costs will vary widely. 

Senators Cornyn, Blumenthal Introduce Bill for FTC Antitrust Authority Over Drug Patents – On Thursday, May 9, Senators John Cornyn (R-TX) and Richard Blumenthal (D-CT) introduced the Affordable Prescriptions for Patients Act which, if enacted, would provide the Federal Trade Commission (FTC) with more antitrust authority over pharmaceutical company activities like pay-for-delay settlements or withholding drug samples from generic drugmakers.

House Democrats Urge USTR to Reconsider IP Provisions of USMCA – On May 3, democratic members of the House Committee on Ways and Means sent a letter to U.S. Trade Representative Robert E. Lighthizer asking him to make changes to certain IP provisions of the United States-Mexico-Canada Agreement (USMCA), which the committee soon will be considering prior to full implementation. 

Amicus Briefs Filed in Acorda v. Roxane Asks SCOTUS to Undo Blocking Patent Doctrine – On Wednesday, May 8, a group of organizations including the Biotechnology Innovation Organization (BIO), Pharmaceutical Research and Manufacturers of America (PhRMA), Allergan and the Boston Patent Law Association filed amicus briefs with the U.S. Supreme Court asking them to grant review in Acorda Therapeutics v. Roxane Laboratories and undo the Federal Circuit’s “blocking patent” doctrine. 

Gilead Strikes Patent Settlement With Teva Over Generic Truvada – On Tuesday, May 7, Gilead Sciences released its earnings report for 2019’s first quarter; the report discusses a patent settlement agreement between Gilead and Teva Pharmaceuticals which will allow Teva to release a generic version of the Truvada pre-exposure prophylactic (PrEP) treatment for AIDS on September 30, 2020.

PTAB Issues Two Precedential Decisions Denying IPRs After Multiple Proceedings – On Tuesday, May 7, the Patent Trial and Appeal Board (PTAB) marked two inter partes review (IPR) cases as precedential after both were denied institution on the basis that patent claims challenged in either review were also challenged by earlier petitions.

USPTO Issues Guide for Examining Marijuana-Related Trademarks – On Thursday, May 2, the U.S. Patent and Trademark Office published a guide for the examination of cannabis- and marijuana-related trademarks after passage of the 2018 Farm Bill, which removed cannabis products containing no more than 0.3 percent of delta-9 tetrahydrocannabinol (THC) from Schedule I of the Controlled Substances Act.

Fourth Circuit Rules That Bankruptcy Can Erase Trade Secret Damages – On Thursday, May 9, the Court of Appeals for the Fourth Circuit issued a decision in TKC Aerospace Inc. v. Charles Taylor Muh in which the appellate court vacated a $20 million damages award for trade secret theft because both the defendant was in Chapter 7 bankruptcy proceedings and the district court didn’t determine that the debtor intended to injure the plaintiff.

USPTO to Modify Patent Term Adjustment Procedures After Supernus Pharm. – On Thursday, May 9, the USPTO published a notice in the Federal Register indicating that the agency was looking to modify its procedures on patent term adjustment in light of the Court of Appeals for the Federal Circuit’s recent decision in Supernus Pharm. v. Iancu. In that case, the appellate court overturned an agency’s decision to consider an entire delay period as applicant delay when there were no identifiable actions the applicant could have taken during that period.

Canadian Licensing Organizations Create Single Entity for Business Licenses – On Wednesday, May 8, officials from RE:SOUND, a Canadian entity collecting tariffs on music recording media, and the Society of Composers, Authors and Music Publishers of Canada (SOCAN), which administers Canadian live music licenses, announced the creation of Entandem as a single entity for licensing restaurants, retailers and other businesses who want to play music in their places of business.

[[Advertisement]]

Barks

UMG Asks District Court to Dismiss Class Action Suit Over Copyright Terminations – On Friday, May 3, Universal Music Group filed a motion to dismiss a class action suit in the Southern District of New York which argues that the songwriters in the case can’t legally terminate the copyright grant for their music because such grants were made by the loan-out corporations and not the songwriters.

Western Virginia Won’t Wait for TTAB in Trademark Infringement Case – On Friday, May 3, U.S. Magistrate Judge Joel Hoppe of the Western District of Virginia issued a memorandum opinion in which he denied a motion filed by defendant American Society of Pension Professionals & Actuaries to stay the district court proceedings until trademark opposition proceedings at the Trademark Trial and Appeal Board (TTAB) had concluded.

https://depositphotos.com/30633387/stock-illustration-postman-followed-by-a-dog.htmlChicago Cubs Successfully Oppose “Cubnoxious” Trademark – On Friday, May 3, a TTAB panel issued a final decision in an opposition proceeding brought by the Chicago Cubs which sustained an opposition to a trademark application for the term “Cubnoxious” after the Cubs argued that consumers might be confused into thinking that the team supported the idea that its fans were obnoxious.

LG Electronics Faces Patent Suit Over Wireless Technologies – On Friday, May 3, scheduling tech developer Mesa Digital LLC filed a patent infringement suit against LG Electronics in the Southern District of California asserting three patents covering wireless device technologies for data transmission and geolocation mapping.

Bankruptcy Judge Approves Trade Secret Case Settlement Between ASML and XTAL – On Friday, May 3, U.S. Bankruptcy Judge M. Elaine Hammond approved a settlement stemming from a trade secret case brought by semiconductor firm ASML against rival firm XTAL Inc. which includes an injunction preventing employees from the now-bankrupt XTAL from competing against ASML for three years.

Chilean Singer Drops Copyright Suit Over Frozen’s “Let It Go” – On Wednesday, May 8, U.S. District Judge George Wu of the Central District of California dismissed a copyright infringement suit after Chilean singer Jamie Ciero agreed to drop claims that “Let It Go,” the hit song from Disney’s Frozen, was melodically identical to Ciero’s “Volar” which he started performing in 2008.

Emails in Target Trademark Case Not Covered by Attorney-Client Privilege – On Monday, May 6, Chief Magistrate Judge Gabriel Gorenstein of the Southern District of New York issued an opinion in which he found that emails between plaintiff Universal Standard and its attorneys weren’t protected by attorney-client privilege because the emails were also sent to a public relations firm used by Universal Standard for regular business and not just for legal strategy.

This Week on Wall Street

Wall Street Falters in Anticipation of U.S.-China Trade Talks – On Thursday, May 9, U.S. stocks were down by as much as 1 percent before recovering some losses in the leadup to trade negotiations between the Trump Administration and Chinese President Xi Jinping with talks expected to extend through Friday. 

Facebook Co-Founder, U.S. Lawmakers Urge Antitrust Breakup of Facebook – On Thursday, May 9, Facebook publicly rejected calls from its co-founder Chris Hughes to split Facebook into three separate companies. The same day, Senator Richard Blumenthal (D-CT) told reporters that the U.S. Department of Justice should lead an antitrust investigation that could result in a similar breakup of Facebook.

Technicolor Patent Acquisition Leads to First Quarter Loss for InterDigital – On Thursday, May 2, mobile research and development firm InterDigital posted a net loss of $2.8 million during 2019’s first quarter due in part to an increase in operating expenses including $12.1 million spent to acquire Technicolor SA’s patent licensing operations.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2017 are announcing quarterly earnings next week (2017 rank in parentheses):

  • Monday: Bridgestone Corp. (t-199th); Hon Hai Precision Industry Co. (t-133rd); HTC Corp. (t-172nd); Konica Minolta, Inc. (83rd); LG Electronics Inc. (8th); Toshiba Corp. (16th)
  • Tuesday: Merck KGaA (t-161st); Nissan Motor Co., Ltd. (101st); Renesas Electronics Corp. (68th)
  • Wednesday: Alibaba Group Holding Ltd. (t-269th); Cisco Systems Inc. (38th); Japan Display Inc. (75th); NTN Corp. (t-280th); Sumitomo Chemical Co., Ltd. (t-182nd); Tencent Holdings Ltd. (t-102nd)
  • Thursday: Applied Materials Inc. (70th); Nvidia Corp. (t-130th)
  • Friday: Deere & Co. (111th)

Images Source: Deposit Photos
TOP: Photo by damedeeso
ID: 182060190 

PHOTO TWO: Vector by zetwe
ID: 13561580

PHOTO THREE: Vector by rubiocartoons
ID: 30633387

PHOTO FOUR: Photo by blurAZ1
ID: 34806671

The Author

IPWatchdog

IPWatchdog

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 21 Comments comments.

  1. Anon May 10, 2019 6:12 pm

    A start, but not nearly far enough:

    Trump Issues Rule Requiring Drug Pricing Transparency – Beginning this summer, pharmaceutical companies will be required to include the list price of any drug that costs more than $35 per month in television ads. The pharmaceutical industry has argued the rule will confuse consumers, since their out of pocket costs will vary widely.

    As I noted previously here: https://www.ipwatchdog.com/2019/04/28/accelerating-generic-entry-proven-solution-problem-prescription-drug-pricing/id=108586/

    Transparency is a huge – and easy part of any remedy concerned with Pharma costs to consumers.

    “But they will be confused” is an ultra-lame excuse for the Pharma industry that itself chooses to engage in the confusing profit generating mechanisms.

    In fact, let’s “recognize” that possible confusion and mandate MORE in order to reach the desired transparency; List price is not enough.

    (and as noted, this transparency should apply to ALL Pharms – including generics)

  2. Anon2 May 11, 2019 7:14 am

    Anon@1

    How far you have gone, one who professes “classical liberalism” now endorses state forced disclosure in television ad content for life saving or quality-of-life enhancing drugs?

    If you do not believe that individual consumers of drugs, perhaps their employers, the healthcare professionals (doctors nurses pharmacists), insurance companies and/or HMOs, and pharma itself, including the myriad individuals and multiple voluntary relationships, dealings, interfaces, intermediaries, and arrangements and options among then in as free a market as possible, AND THE FACT that they will eventually come to an agreement to buy or not, are not together enough to provide “classical liberty”, then either you believe “classical” liberty is a waxy-flexy contingently morphing thing subject to our whims, (and including such “freedoms” as the freedom not be offended, the freedom to obtain by force an expected outcome, freedom from personal repsonsibilty… etc) or (as it turns out quite equivalently) your view p’raps is not so “classical”.

    Now, if you said this thing is abhorrent, but it is the least of all evils in this regard that free self responsible individual adults are facing due to the socialist statist behemoth that is the declining culture of America, then maybe I might begin to understand your “endorsement”.

    Absent that, on what fundamental principle(s) of “classical liberalism” could you possibly justify endorsing such a monstrosity as forcing disclosure of some (possibly arbitrary, inaccurate, and/or temporary MSRP-like) price in an advertisement meant only to inform a potential consumer about, and yes also pique the consumer’s interest in, a particular product which is potentially life saving or quality-of-life enhancing?

    Should you be tempted to justify this monstrosity based on the ends rather than on principle, perhaps you, of all persons, should take pause to really think about what you actually think (or more accurately … feel) and why.

  3. Anon May 11, 2019 9:59 am

    Anon2,

    You assume several conclusions, for which facts simply are not in evidence.

    Chief among them is that there IS some “monstrosity” afoot in merely making known that which corporations may choose (and for which, NO choice is actually mandated or constrained).

    If mere visibility offends you, I suggest that you dwell on the “monstrosity” within yourself first.

  4. Anon2 May 11, 2019 11:53 am

    Anon@3

    Well then, how about you enlighten me and other readers (or prove me wrong, your choice)?

    Ignoring the characterization of the “what” being proposed (as a “monstrosity”), can we agree that objectively what is being proposed is coercion (state regulation) in the sphere of non-fraudulent voluntarily produced and broadcasted commercial expression, is some means to an end? i.e. Without ANY justification or condemnation what we have here is: The freedom of choice in the sphere of advertising in a non-fraudulent voluntary manner is being coerced by the state to require the additional inclusion of some sort of price, for some purpose.

    I’m not using any characterization or hyperbole here, just facts we can agree on.

    Could you then justify on “classical liberal” principles (rather than by some identifiable ends) the means being proposed?

  5. Anon May 11, 2019 1:11 pm

    Visibility is just not the same as coercion.

    There is no dictate, mandate, or control over WHAT would be charged. Merely visibility.

    Again: if visibility offends you, then you need to look within as to why.

  6. Curious May 12, 2019 8:40 am

    The freedom of choice in the sphere of advertising in a non-fraudulent voluntary manner is being coerced by the state to require the additional inclusion of some sort of price, for some purpose.
    My legal writing professor would have flunked me had I included this in one my writings samples. What are you trying to say?

    If you do not believe that individual consumers of drugs, perhaps their employers, the healthcare professionals (doctors nurses pharmacists), insurance companies and/or HMOs, and pharma itself, including the myriad individuals and multiple voluntary relationships, dealings, interfaces, intermediaries, and arrangements and options among then in as free a market as possible, AND THE FACT that they will eventually come to an agreement to buy or not, are not together enough to provide “classical liberty”, then either you believe “classical” liberty is a waxy-flexy contingently morphing thing subject to our whims, (and including such “freedoms” as the freedom not be offended, the freedom to obtain by force an expected outcome, freedom from personal repsonsibilty… etc) or (as it turns out quite equivalently) your view p’raps is not so “classical”.
    As far as I know, there isn’t a shortage of periods (i.e., “.”) in the world. I’m trying to decipher what is being said here, but this run-on sentence isnot helping. This reminds me of examiners who respond to my arguments with a paragraph spanning 3 pages.

    Good writing is about getting your message across. I think I have an inkling of an understanding as to what is being argued here, but I’m not sure, and that is not a good thing (for the writer).

    For example, let me give you my thoughts on the matter. Drug pricing is undecipherable. Patients don’t know the cost of drugs (or the alternatives and their costs) at the time of the prescription. The lack of transparency in drug pricing harms consumers as they lack the information needed to make wise decisions on their health care. A fair market works best when all sides have complete information. Otherwise, lack of information causes inefficiencies in pricing (e.g., gouging).

    For example, I recall reading about instances in which the insurance “co-pay” on a particular drug was more than the cost of the drug. Between the insurance companies, the drug manufacturers, the drug distributors, the doctors, and the drug retailers, all of them have an interest in keeping the cost of drugs artificially high.

  7. Anon2 May 13, 2019 7:22 am

    My writing was mostly directed at an audience of one. Nothwithstanding the awkwardness of my writing style, I was quite certain the meaning would be discerned.

    “A fair market works best when all sides have complete information. Otherwise, lack of information causes inefficiencies in pricing (e.g., gouging).”

    What is your standard for “works best”? When prices of drugs are “kept” “sufficiently” low? If a price finally is agreed, and product actually sold, what objectively constitutes too high or too low a price in any market? How do you objectively define “gouging” if the price is arrived at without State coercion? If arrived at without State coercion, on what principle(s) or by what standard do you judge “gouging” to be “wrong”?

    “For example, I recall reading about instances in which the insurance “co-pay” on a particular drug was more than the cost of the drug. Between the insurance companies, the drug manufacturers, the drug distributors, the doctors, and the drug retailers, all of them have an interest in keeping the cost of drugs artificially high.”

    Why do you think there isn’t more competition between insurance companies and distributors? Do you really blame “free market” collusion? Is there no part played by the presence of overregulation being “gamed”?

    What do you mean by “artificial” pricing? How do you objectively define any price arrived at without State coercion as “artificial”? Are all prices arrived at without State coercion “artificial”? If not, on what basis would any particular voluntary arrived at price be or not be “artificial”? Even if “artificial” according to your definition, if arrived at without State coercion, on what principle(s) or by what standard do you judge “artificial” pricing to be “wrong”?

  8. Curious May 13, 2019 9:26 am

    What is your standard for “works best”?
    I used the term “fair market,” which has a pretty well known meaning to those familiar with economics. Part of that definition involves that both parties are knowledgeable.

    Here is one definition of fair market value: “The price at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts.” In the context of pharmaceuticals, the buyer is not a willing buyer. He or she doesn’t want to buy the drug — rather they are forced to buy the drug. Also, their knowledge of the relevant facts is very limited. They don’t know the alternatives in terms of drugs (both relative efficacies and relative prices) and alternatives in terms of where to obtain the drugs. For example, many are locked into a particular health plan, doctor, and/or pharmacy.

    How do you objectively define “gouging” if the price is arrived at without State coercion?
    That is the easy part — provide me with somebody having reasonable knowledge of the relevant facts, and it won’t be hard to identify gouging.

    Why do you think there isn’t more competition between insurance companies
    Why do you think insurance companies want lower prices? If an insurance company can reasonably skim off the top of insurance premiums (I’m using a hypothetical number) of 5% (the 95% remainder being used to pay for claims) consider what happens if health costs decreased by 25% versus if health costs increased by 25%. If health costs go up, the insurance company makes more money. If health costs go down, the insurance company makes less money.

    Because of the way health insurance is marketed, it is almost impossible for an individual consumer to price shop individual health care services and items. Without a real market to keep sellers in check, sellers have much more opportunity to artificially inflate prices.

    You like to use the word “State coercion.” I also noticed you used the word “free market.” This combination of phrases appears to be favored by libertarians. To fully explore the problem with the libertarian view of managing a market/economy is a length endeavor for which I don’t have the time. As such, I’m going to have to just skim the surface.

    A free market is not a fair market. Absent regulations, in a free market, anything goes. You want to misrepresent your products, that is fine. You want to engage in anti-competitive behaviors, that is fine. If you can convince somebody that a plain rock is worth $50,000, that is OK. You want to convince a elderly woman that her fully paid up $100,000 whole life insurance policy is worth $5,000, that’s fine too. You convinced the government to pay you $150,000/year/person for an off-patent drug that doesn’t have the efficacy of a drug costing $100/year, good for you. In a free market, you are FREE to do anything. Sure, there will be a lot of people who will engage in ethical behaviors. However, all it takes is a handful of unscrupulous people to take advantage of the situation to wreck it for everybody. I could go a lot deeper than I have, but I’ll leave it at that.

  9. Anon May 13, 2019 12:14 pm

    Anon2 and Curious (and general readership):

    I do find the exchange interesting because by and large Anon2 and I tend to agree on many things.

    My position vis a vis Big Pharma appears to be NOT one of those things.

    For some reason which is NOT clear to me, Anon2 takes exception to the points that I have stated.

    I find his expressions NOT accurate (and I do feel that I have to “guess” more than I like as to what Anon2 is actually saying, and why Anon2 is taking the position that he is taking).

    I feel that the “guess” part comes in (at least in part), because the attempt at pigeonholing me into some strict “classical liberalism” is more than just a little ham-fisted.

    That attempt fails on multiple grounds.

    The biggest point of failure though is that Anon2 appears to not be grasping the rather simple point that clarity is ALL that is being “mandated” with my view.

    My position has NO forced government control on pricing – of any kind.

    I put to Anon2 (twice) the direct point on clarity. For whatever reason, Anon2 does not want to address that actual point.

    In his reply to you, he engages in a “cram” session of a ton of questions, most of which may be picked up – in proper time and calmly so, ONCE he actually steps up to the plate and explains why he seems to have a problem with simple clarity. The barrage of questions makes some implicit assumptions which may or may not even be pertinent (for example, how is collusion being associated with “free market” and why is this view juxtaposed as of there must be some all or nothing of this and any presence of over-regulation? The funny thing is that there may be several different and overlapping drivers which may or may not impinge on other drivers, but that MY CALL FOR CLARITY would only help sort through these things.

    He has only replied with a trumped-up emotional outburst, seemingly being offended that actual systemic clarity is somehow a “bad” thing, an “over-controlling” thing, and something that would somehow prevent or stymie the basis of the larger economic-political “view” that he thinks that I ascribe to. I do recognize that the very reason WHY people WANT clarity is that because there is an underlying sense that something is not right. Anon2 “jumps the gun” more than a little bit by his questioning as to challenging you to defend your seeming position that “artificial positions are wrong.” His series of questions banks on the implied position that ANY “non-State coerced” pricing cannot “be wrong,” but this is MORE strictly an emotional “hot-button” as opposed to even coming to terms with what may or may not BE “wrong.”

    Even before we “get” to ANY discussion of what is or what is not “wrong,” we need clarity.

    I have seen the “insides” of certain Pharma cases (but am not at liberty to share details). Profit margins and where costs actually come from (marketing and sales, as opposed to R&D) would plainly be more than just a little alarming if clarity were actually taken as a first step to any subsequent conversation about what may be deemed “wrong,” “right” or some level of profit that is not usurious.

    Being clear MAY indeed be scary for the insiders of Big Pharma. But being clear is just not the same as demanding ANY level of profit be foreordained or set by government edict. At the same time, I reject the notion from Big Pharma that they “have to” comply with any foreign government edict on set pricing or limited profit margins (for which they turn around and jack up the profit coming from US consumers). Any such foreign “demand” can and likely should be met with the “walk away” option. The choice of perusing a market with forced lower profit margins is STILL A CHOICE to enter that market. If Big Pharma wants to maintain their set margins (which I am NOT saying that they cannot), then they can fully tell any foreign entity to pound salt or pay up.

    There is absolutely NOTHING incongruent with any of the econo-political beliefs that I ascribe to for me to want clarity of the profit mechanisms that may be “inconvenient” or “embarrassing” to Big Pharma and the over-bloat that MAY be shown to exist vis a vis US consumer overall-profit buoyancy and what amounts to nothing more than my forced altruism so that Big Pharma can have its market presence elsewhere.

    The ability to call a spade a spade is ENTIRELY separate from any subsequent fall-out that may accrue from the desired clarity.

  10. Anon2 May 13, 2019 12:57 pm

    Yes, we seem to disagree about what constitutes force, whether fraud would be a legal part of a “free market”, what objectivity means, and a great many other things I suspect, so I too shall “leave it at that”.

  11. Anon May 13, 2019 3:39 pm

    Anon2,

    Your choice of “leaving” leaves your post in disarray. I am a bit surprised at both your entry and exit – usually you display a more thorough and complete thinking process.

  12. Anon2 May 14, 2019 8:20 am

    Anon@11

    I am slowly coming to the realization that every moment of my one and only finite life really is priceless to me, that my life consists only in all those moments and they are all I ever will have, and that I need to spend every second more wisely.

    Here, I have concluded that I simply am no match against the persuasive subconscious sway of Marx and Jesus, especially for particular issues such as health care, they re-enforce each other. Here class war-fare, the needy and the able, the eye of the needle, the rich man, and the camel, all strut upon the subconscious stage, to an audience of cheers and boos, laughing, crying, jumping, and the gnashing of teeth. I have no place here, or better yet, here is not the place for me.

    Fare well…
    Good premises!

  13. Anon May 14, 2019 9:24 am

    Anon2,

    You depart poorly.

    Yes, as you let the door hit your behind, you throw yet another “jab” that is misplaced, by lumping any who would disagree with you into an otherworldly mix of Jesus/Marx (as a type of slam against Free Markets).

    By attempting to lump ALL into that single bucket you yet again misconstrue my position and FAIL yet again to answer the direct point that I have put to you based on the non-“coercion” of simple clarity.

    You call this out as a “class-warfare” meme as a smokescreen for making ANY advance in what is clearly a mixed ground.

    I do hope that your next attempted interaction returns to your former higher standards.

  14. xtian May 14, 2019 11:09 am

    Why stop at “list price?” Why shouldn’t we demand that the advertisement include the “profit margin” rather than the consumer price?

    These questions are meant to be provocative. Personally, I lean towards Anon2’s viewpoint. State intervention to force speech (i.e., requirement to disclose a “price”) would be contrary to a “classical liberalism” approach.

    That said, for a large percentage of the population, what matters is only how much the drug will cost out of pocket. Most patients could not care whether a drug is $400/pill when co-pays are $40 for a 90-day supply.

    What also is missing from this discussion is that more and more, it is the insurance companies that drive what drug is dispensed, not the doctor. When Dr. writes a script for a drug that is best for the patient and that drug is not covered by the patient’s insurance, the patient would have to pay out of pocket. Sticker price sets in. So, the Dr. and pharmacy try to find a “similar” drug that is covered so that patient doesn’t have to drug pay list price. I am not talking about generic switching. I am talking about a medication with a specific mechanism of action (MOA) that the Dr. feels would be the best medicine for his/her patient that is then switched out for another medication with a different MOA (and wasn’t the Dr. first choice of treatment) just because it is covered by insurance.

  15. Anon May 14, 2019 2:06 pm

    xtian,

    As Anon2 will not engage, perhaps you will and explain just what is so “onerous” and “coercive” with having to provide clarity?

    The provision of clarity carries with it ZERO actual coercion of set price levels.

    That you identify “what people generally care about “ in view of what matters only being the cost out of pocket – is itself a smokescreen and hides the larger buried costs in the “ecosystem of healthcare.”

    As I put it – MORE visibility into these mechanisms can ONLY be a good thing.

    I have to wonder why there is so much consternation (and improperly labeled “coercion”) when ALL that is being sought is clarity such that informed opinions can be made.

    All the ruckus points to the probability that something IS being hidden and that someone WOULD be very uncomfortable if all the players were fully informed.

    Such ruckus only makes me think that my idea is a stronger idea.

  16. xtian May 14, 2019 3:43 pm

    Of course this is all my perspective:

    My read of this thread is that Anon2 viewed you as a classical liberalist. From the all-knowing Wiki: Classical liberalism is a political ideology and a branch of liberalism which advocates civil liberties under the rule of law with an emphasis on economic freedom. So, a view is that government forcing you to advertise your price would be a constraint on your economic freedom. You didn’t have that opinion, so Anon2 was perplexed. Simple as that. Whether you agree to it or not, that’s how I interpreted your interactions with Anon2.

    “That you identify “what people generally care about “ in view of what matters only being the cost out of pocket – is itself a smokescreen and hides the larger buried costs in the “ecosystem of healthcare.””

    -we are in agreement with the hidden costs. But because 90% of the time the patient doesn’t pay those advertised costs, reality is that the patient will really only care about co-pays.

  17. Anon May 14, 2019 4:27 pm

    “Forcing” you to be clear is NOT force. It is not – and never has been – a civil liberty to obfuscate. There is NO “Rule of Law” impinged with clarity.

    In other words, there remains no actual constrained or conscripted levels of actually setting a price, and Anon2 was (deeply) in the weeds. As I noted, he made numerous assumptions for which the facts simply were not present – and then he refused to actually engage on the single meaningful point that would have cut through his malarkey.

    As I noted, Anon2 typically is much more thoughtful and complete. His posts here are very much out of character.

  18. Curious May 14, 2019 7:45 pm

    State intervention to force speech (i.e., requirement to disclose a “price”) would be contrary to a “classical liberalism” approach
    We force companies to list ingredients in food. There are a whole host of regulations that force companies to list prices for various goods/services. A market works more efficiently when people are aware of the costs of items. It works inefficiently when there is less information. When a market is efficient there are big winners and big losers that can be based solely upon differences in knowledge — not based upon the relative value of the goods and services being offered.

    More information … and more importantly, clear information is rarely a bad thing. If it has to be forced out of companies, then so be it. As for me, I’m more for an efficient market than I’m for the economic freedom of a company to screw consumers.

  19. xtian May 15, 2019 9:15 am

    @Curious and Anon2 – I am not arguing the merits of whether the requirement to require price disclosure is appropriate. I am commenting on the fact that forcing speech – like forcing pricing on products, would be argued against if one were a classic liberalist.

    Now, my take: Curious’ justification – the need for market efficiency though “clarity” would not be a strong enough public policy argument to overcome the freedom from forced speech. This is different from Curious’ example of the requirements to list food ingredients. We do this to protect the public health. Protection of the public health, in my opinion, outweighs the freedom from forced speech. My scales are different than yours. I think I take more of a libertarian approach.

  20. Anon May 15, 2019 10:54 am

    xtain,

    And (to speak for Curious if I may), we are replying that there is NO “force” in requiring clarity.

    There is NO “forcing pricing” (I noticed that you slid that phrase in there).

    When one chooses affirmatively to place something in the market, there is NO sense that one can do so with ZERO strings. This is not a econo/politico/philosophical point. This is a basic reality point.

    The entire notion of “but this is forced speech” is wrong, and presumes an aspect NOT present.

  21. Curious May 15, 2019 4:51 pm

    the need for market efficiency though “clarity” would not be a strong enough public policy argument to overcome the freedom from forced speech
    Market efficiency is a policy argument that is pretty powerful. BTW — this “freedom from forced speech” is an awkward statement that really doesn’t reflect what is going on. Nobody is forcing anybody to take a viewpoint they don’t believe in. In fact, the type of information being required is hardly considered “speech.” As we should all know from Constitutional Law, commercial speech doesn’t get anywhere near the same protections as noncommercial speech (e.g., political speech).

    Here we go … a nice little snippet:
    In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Supreme Court held that a state may situationally compel commercial speech without violating the advertiser’s First Amendment rights. Specifically, a state may require an advertiser to disclose certain information “as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”
    I think that hits the nail on the head.

    I think I take more of a libertarian approach
    Some may take issue with it, but I find libertarian-ism and communism to be very similar in one respect. Specifically, they don’t account for the fact that all it takes is one jerk to ruin it for everybody else. In communism, the jerk can be the guy that doesn’t work and lives off the fruits of other people’s labors. Eventually, people see that this guy is better off than everybody else and will tend to copy him. In a libertarian-run economy (think free market with little to no regulation), the jerk is the guy that misleads the parties he does business with. Without any checks in place to stop this activity, somebody will take advantage it. Eventually, people see that taking advantage of other people is the best way to conduct business, and that leads to an extremely inefficient market that requires people spending an inordinate time ensuring that they don’t get screwed. Neither of these philosophies work well in the real world.