The Political Economy of Hatch-Waxman

My colleague, Professor Erika Lietzan (Missouri) has released a really interesting and thorough article walking through the history of the Hatch-Waxman legislation process beginning with some proposals in the 1970s through its passage in 1984.  The article is important in the midst of increasing calls for reform of the system.

She writes:

[T]he conventional wisdom about the Hatch–Waxman Amendments — as a privately negotiated compromise between the innovative and generic industries in which each gained and each lost — is wrong. . . . The truth is more nuanced, and the balance of benefits and costs different.

Basically – and at the risk of oversimplification – Prof. Lietzan argues that this compromise analysis ignores the important expected broad social benefit of generic involvement championed by Rep. Waxman and Public Citizen.  Lietzan writes that the outcome of this public alliance with generic entrants “made generic companies better off, and it made patent owners worse off.”  That result cannot be explained by the traditional insider-negotiated story.

Read a draft here: Erika Lietzan, The Political Economy of the Hatch-Waxman Amendments (March 13, 2018). Seton Hall Law Review, Forthcoming. Available at SSRN:


4 thoughts on “The Political Economy of Hatch-Waxman

  1. 2

    Conclusion – legislation coddling special interests results in unintended harm to ordinary Americans. Hatch-Waxman with Leahy-Smith have virtually destroyed the patent incentive for true innovation. Enjoy your copies and generics America.

    1. 2.1

      I say either repeal the Patent Act, or nail it down so inventors can count on actual exclusivity for an actual amount of time. Get us out of this paralyzing limbo. Doling out favors to special interests is antithetical to the ideal of the patent system. Call it something else.

  2. 1

    Although this is a historical review perspective, for current economic relevance and balance the impact of AIA IPRs as alternatives or additions to Hatch-Waxman legislation processes for challenging patent validity cannot be validly ignored. I did not see any mention of it in this draft paper.

    1. 1.1

      …and neither should the questionable and infirm practice be conflated.

      Especially given how separate the historical items are (and doubly so given a possible – impending*** – Oil States Court decision.

      Put the F N pom poms down already Paul.

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