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EMERGING HEALTH CARE ISSUES: FOLLOW-ON 

BIOLOGIC DRUG COMPETITION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JUNE 11, 2009 

Serial No. 111–46 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 


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COMMITTEE ON ENERGY AND COMMERCE 

HENRY A. WAXMAN, California, Chairman 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

Vice Chairman 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANE HARMAN, California 

TOM ALLEN, Maine 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

CHARLIE MELANCON, Louisiana 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

DORIS O. MATSUI, California 

DONNA CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

CHRISTOPHER S. MURPHY, Connecticut 

ZACHARY T. SPACE, Ohio 

JERRY MCNERNEY, California 

BETTY SUTTON, Ohio 

BRUCE BRALEY, Iowa 

PETER WELCH, Vermont 

JOE BARTON, Texas 

Ranking Member 

RALPH M. HALL, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOHN B. SHADEGG, Arizona 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

(II) 


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SUBCOMMITTEE ON HEALTH

FRANK PALLONE, JR., New Jersey, Chairman 

JOHN D. DINGELL, Michigan 

BART GORDON, Tennessee 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JAN SCHAKOWSKY, Illinois 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

JANE HARMAN, California 

CHARLES A. GONZALEZ, Texas 

JOHN BARROW, Georgia 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

CHRISTOPHER S. MURPHY, Connecticut 

ZACHARY T. SPACE, Ohio 

BETTY SUTTON, Ohio 

BRUCE L. BRALEY, Iowa 

NATHAN DEAL, Georgia, 

Ranking Member 

RALPH M. HALL, Texas 

BARBARA CUBIN, Wyoming 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

STEVE BUYER, Indiana 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

MIKE FERGUSON, New Jersey 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 


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C O N T E N T S 

Page 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 1 

Hon. Nathan Deal, a Representative in Congress from the State of Georgia, 

opening statement ................................................................................................ 3 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 4 

Prepared statement .......................................................................................... 7 

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth 

of Kentucky, opening statement ......................................................................... 12 

Hon. Anna G. Eshoo, a Representative in Congress from the State of California, opening statement .................................................................................... 12 

Hon. Michael C. Burgess, a Representative in Congress from the State of 

Texas, opening statement .................................................................................... 14 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, opening statement ....................................................................................... 15 

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 17 

Hon. Jim Matheson, a Representative in Congress from the State of Utah, 

opening statement ................................................................................................ 18 

Hon. Phil Gingrey, a Representative in Congress from the State of Georgia, 

opening statement ................................................................................................ 19 

Hon. Jane Harman, a Representative in Congress from the State of California, opening statement .................................................................................... 20 

Hon. Joseph R. Pitts, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 20 

Hon. Donna M. Christensen, a Representative in Congress from the State 

of Virgin Islands, opening statement ................................................................. 21 

Hon. Steve Buyer, a Representative in Congress from the State of Indiana, 

opening statement ................................................................................................ 22 

Hon. Gene Green, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 23 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 24 

Hon. Tammy Baldwin, a Representative in Congress from the State of Wisconsin, opening statement ................................................................................... 24 

Hon. Tim Murphy, a Representative in Congress from the Commonwealth 

of Pennsylvania, opening statement ................................................................... 25 

Hon. Zachary T. Space, a Representative in Congress from the State of 

Ohio, opening statement ...................................................................................... 26 

Hon. Betty Sutton, a Representative in Congress from the State of Ohio, 

opening statement ................................................................................................ 26 

Hon. Bruce L. Braley, a Representative in Congress from the State of Iowa, 

opening statement ................................................................................................ 27 

Hon. Janice D. Schakowsky, a Representative in Congress from the State 

of Illinois, opening statement .............................................................................. 28 

WITNESSES

Pamela Jones Harbour, Commissioner, Federal Trade Commission; and Michael Wroblewski, Deputy Director of the FTC’s Office of Policy Planning .... 29 

Prepared statement .......................................................................................... 33 

Answers to submitted questions 1


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VI 

SUBMITTED MATERIAL

Federal Trade Commission report of June 2009 ................................................... 40 

Working paper by Duke University Department of Economics on Data Exclusivity, dated December 22, 2008, submitted by Mr. Buyer .............................. 184 

HHS responses to subcommittee, dated September 18, 2008, submitted by 

Ms. Eshoo .............................................................................................................. 234 

Reported entitled, ‘‘Proper Duration of Data Exclusivity for Generic Biologics,’’ 

by Alex M. Brill, submitted by Mr. Deal ............................................................ 250 

Report entitled, ‘‘Stimulating Innovation in the Biologics Industry: A Balanced Approach to Marketing Exclusivity,’’ by Laurence J. Kotlikoff, submitted by Mr. Deal ............................................................................................... 262 

Report entitled, ‘‘Biologics in Perspective: The Case for Generic Biologic 

Drugs,’’ by AARP Public Policy Institute, submitted by Mr. Deal ................... 282 

1 Ms. Harbour did not respond to submitted questions for the record. 


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EMERGING HEALTH CARE ISSUES: FOLLOWON BIOLOGIC DRUG COMPETITION 

THURSDAY, JUNE 11, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HEALTH, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The Subcommittee met, pursuant to call, at 10:08 a.m., in Room 

2123 of the Rayburn House Office Building, Hon. Frank Pallone, 

Jr. [chairman of the subcommittee] presiding. 

Present: Representatives Pallone, Dingell, Gordon, Eshoo, Green, 

DeGette, Capps, Schakowsky, Baldwin, Matheson, Harman, Barrow, Christensen, Castor, Sarbanes, Murphy of Connecticut, Space, 

Sutton, Braley, Waxman (ex officio), Deal, Whitfield, Shimkus, 

Buyer, Pitts, Myrick, Murphy of Pennsylvania, Burgess, Blackburn, 

and Gingrey. 

Also present: Representative Inslee. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. The meeting of the subcommittee is called to 

order, and I will recognize myself initially. Today, the subcommittee is meeting to discuss the Federal Trade Commission report entitled Emerging Health Care Issues: Follow-on Biologic 

Drug Competition. This is an extremely timely report and goes to 

the very heart of our President and this Congress’ commitment to 

ensuring affordable and quality health care for every American. 

Creating a statutory pathway for the approval of follow-on biologics 

presents us with an opportunity to improve millions of lives at a 

more affordable cost. Currently, brand biologics account for approximately 15 percent of total U.S. prescription drug sales, and 

the industry is growing at a rate of around 20 percent annually. 

In a couple years, we could be spending over $100 billion just on 

biologic drugs. 

According to data from the Centers for Medicare and Medicaid 

Services, CMS, just 4 biologics account for 30 percent of all Medicare Part B spending. Obviously, these drugs are costing the health 

care system a lot of money, and it is not just the health system 

that is being burdened by these high costs. For American families 

biologics can cost in the tens of thousands of dollars for the most 

popular drugs. In some cases the life-saving biologic can cost a patient over $300,000 a year. There is no doubt that these innovative 

drugs provide Americans access to ground breaking treatments for 


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devastating illnesses, including cancer, arthritis, and multiple sclerosis. 

But I have heard too many stories from my home district in New 

Jersey and from all around the country of hard-working people who 

just can’t afford the tremendous cost of these life-saving and lifeimproving drugs. In a country of the best and the brightest, which 

we are, I have to believe that we can do better. We must continue 

to innovate and push the envelope to discover more effective treatments and cures for the scourges of our time. In the same vein, we 

must also ensure that these innovative products are available to 

patients at an affordable price. We are faced with a delicate balance moving forward between ensuring reasonable drug prices and 

expenditures, increasing access for more Americans, and supporting innovation. And I know that we have different bills on this 

subject and we have significant disagreements, but I also think 

that we all believe that we need to move forward with a pathway 

for these follow-on biologics, and this hearing today is the beginning of that process. 

There are some principles, the same principles that essentially 

guided us with chemical substances I think can guide us in the creation of legislation today. We all know about the Hatch-Waxman 

Act. Mr. Waxman isn’t here, but I am sure he will be. 

Mr. WAXMAN. I am. 

Mr. PALLONE. Oh, you are. I am sorry. 

Mr. WAXMAN. It is Waxman-Hatch. 

Mr. PALLONE. Yes, I know. I was going to say that. I see in the 

document it says Hatch-Waxman. I said it is Waxman-Hatch, not 

Hatch-Waxman. But we know that Waxman-Hatch has been a 

great success since its passage or since it went into effect in 1984. 

And since its passage more generic drug manufacturers have entered the market driving down costs to the consumer. Also, pioneer 

drug companies have given protections that have spurred innovation leading to advancements that are helping us to live longer and 

healthier lives. In addition to driving innovation, Waxman-Hatch 

was also able to effectively and without any market interference 

drive down the cost of drugs. In fact, the U.S. health care system 

has saved over $700 billion in the past 10 years through the use 

of generic pharmaceuticals. In a time when we are facing an economic crisis partly brought on by skyrocketing health care costs, 

this is a staggering figure. 

If biologics are the future, then we should do everything we can 

now to control costs while aiding innovation just like WaxmanHatch did. So today we are hearing testimony on the newly-released Federal Trade Commission report looking specifically at the 

issues of innovation, cost, and competition. The FTC has decades 

of expertise in this area and I value their objective and comprehensive analysis. I am anxious to hear from the FTC about what factors we must consider when moving forward with legislation and 

how follow-on biologics are likely to behave in the market setting 

as compared to generics. I am especially curious to hear about 

what incentives and protections will be necessary in a biologic and 

follow-on biologic world that are similar or different than the current brand and generic arena. 


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And I want to welcome FTC Commissioner Harbour to the committee today. She comes from the State of New Jersey. Thank you 

for coming to testify before us. I would also like to welcome the author of the FTC report, Michael Wroblewski, who has been invited 

along with the Commission to answer more technical questions 

about the report. So thank you both for being here. I now recognize 

Mr. Deal for 5 minutes. 

OPENING STATEMENT OF HON. NATHAN DEAL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. DEAL. Thank you, Chairman Pallone, for holding this hearing today on the issue of surrounding the establishment of an approval pathway and of patent protection concerns on follow-on biologics at the Food and Drug Administration and the resulting impact that this may have on competition and innovation in the biologic drug marketplace. I also want to thank Commissioner Harbour for joining us today to discuss the results of the Commission’s 

very recently completed report. I look forward to that testimony 

and to the questions and answers that will follow regarding that 

report, and we hope she will be able to provide us some definition 

to the debate that currently surrounds this issue. As this subcommittee prepares to consider fundamental health reform this 

summer, I believe a critical component of such reform must include 

the establishment of appropriately abbreviated approval processes 

for follow-on biologic drugs, a priority upon which innovators engineers, and manufacturers both agree. In 2007, global sales of biologic drugs reached $75 billon, and 

current estimates suggest that over half of all drugs, both chemical 

and biologic in nature, will be bio-pharmaceutical products next 

year. Biologic drugs have provided some of the most promising benefits for a wide range of diseases, including anemia, hemophilia, 

cancer, diabetes, HIV, rheumatoid arthritis, and other debilitating 

medical conditions that affect millions of Americans every day. Access to lower cost biologics represents a critical step forward in reducing the overall high cost of health care and will provide greater 

access to patients in need of these critical life-saving therapies. In 

doing so, Congress must be certain a balanced approach is established, which encourages new innovation in new bio-pharmaceuticals while providing more affordable options for the American 

people. 

At the center of this issue, the period of marked exclusivity given 

to innovator products, as well as patent dispute resolution procedures, and the flexibility which Congress will give to FDA to approve bio-similars will direct our nation’s ability to expound upon 

the advancements in the biologic arena and to serve a growing 

number of patients in dire need of these drugs. In the report under 

consideration today produced by the Federal Trade Commission, a 

number of arguments are made which support the robustness of 

our current patent system as it applies to biologics and highlights 

the question how long of a period of market exclusivity must an innovator of biologic products be afforded in order to yield net profit 

results, notably with respect to the significant outlays expended in 

bringing the product to market and how the current intellectual 

property rights translate into the field of bio-pharmaceuticals. 


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I recognize the critical need for innovators to earn a profit on innovative and cutting edge therapies, but also recognize the importance of ensuring access to the American people who simply cannot 

gain access to these critical therapies solely based upon their significant cost. Therefore, a delicate balancing act must be played as 

we pursue congressional establishment of an appropriate approval 

pathway and patent resolution processes under FDA for these 

unique drugs. Among the report’s findings, I am particularly interested in the stated dynamic of competition which follow-ons are 

likely to face upon an appropriate approval mechanism once it is 

in place. According to the report, pioneer manufacturers, potential 

follow-on biologic manufacturers, and payors were virtually unanimous in their predictions that competition from follow-on biologic 

drug entry is likely to resemble brand to brand competition rather 

than brand to generic drug competition. 

And unlike chemical generic drug entry, follow-on biologic entry 

would not result in steep price discounting or rapid acquisition of 

market share by follow-on biologic manufacturers. Therefore, although the introduction of a bio-similar may result in a 10 to 30 

percent reduction in innovator price and an introduction of a competing product into the marketplace innovator companies are still 

capable of securing adequate positive returns on investment for 

years to come and maintain significant market share. And it is important to note the exorbitant cost of many of these therapies 

which thousands of Americans across the country are forced to accept. For example, taking a conservative 15 percent reduction in 

cost of a hypothetical follow-on bio-pharmaceutical which would 

cost $40,000 per year. Allowing bio-similars into the marketplace 

could potentially save this individual $6,000 per year, which is a 

dramatic step toward reigning in the cost of these drugs while encouraging innovation. 

There are a lot of questions which remain. I remain committed 

to working on this issue, an issue which I do believe cannot wait 

any longer to be addressed. I appreciate the cooperation of my colleagues on this committee. I look forward to the testimony. I look 

forward to working together cooperatively as we move this issue 

forward. Thank you, Mr. Chairman. 

Mr. PALLONE. Thank you, Mr. Deal, and thank you for 

prioritizing this issue. And now the chairman, Mr. Waxman. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you very much, Mr. Chairman. Today, we 

are going to hear from the Federal Trade Commission on an issue 

of paramount importance to the debate on a pathway for approval 

of follow-on biologics, how long a period of exclusive marketing 

must we give to biotech drugs to sustain innovation. As was true 

when Congress passed the Hatch-Waxman Act 25 years ago, an effective follow-on biologics bill must maintain a balance between increasing consumer access to affordable medicines on the one hand 

and providing adequate incentives for innovation on the other. Lifesaving drugs are useless if no one can afford them, yet making today’s drugs affordable does us little good if we cut off the supply 


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of future breakthroughs. We have made great progress in the last 

3 years toward a consensus on how to ensure that follow-on biologics are safe and effective. Just 2 years ago the drug industry argued that it was impossible to make follow-on biologics. Now there 

is agreement that it can be done. 

But we remain divided on what incentives are needed for innovation. It is no longer a matter of whether patients will get generic 

versions of these life-saving medicines but when. In assessing how 

much exclusive marketing is needed to sustain innovation, I began 

with a basic premise. The balance we struck in the Hatch-Waxman 

Act has worked well for 25 years. It has given us access to affordable drugs and it has not damaged innovation. Pharmaceutical 

R&D expenditures have not just been maintained, but have steadily risen throughout these 25 years. Under Waxman-Hatch innovative drugs get 5 years of exclusivity. The drug industry has been 

engaged in a massive and expensive lobbying campaign to convince 

the members of this committee that the supply of life-saving drugs 

will dry up if they don’t get triple the monopoly protection available to all other drugs. The drug industry is demanding 12 or even 

14 years of exclusivity for biotech drugs. 

To support this extraordinary request, the industry makes 2 

main arguments. First, that their patents are much weaker than 

drug patents and won’t block competition from follow-ons. Second, 

that it takes 12 to 16 years for biotech drugs to break even so that 

is the period of exclusivity they need. Though I have seen little or 

no persuasive evidence to support these arguments, the industry 

has blanketed Capitol Hill with them. The outcome of this debate 

is too important for our nation’s health to let lobbying cloud decisions. The cost of reaching the wrong decision is simply too high. 

Instead, the appropriate length of exclusivity must be decided on 

the basis of evidence and analysis by objective experts, experts who 

are not being paid by one side or the other. That is why I am so 

pleased that the Federal Trade Commission has undertaken an indepth review of all the evidence and arguments on both sides of 

this debate. The FTC employs economists, patent lawyers, and experts in the pharmaceutical marketplace. Their job is to assess the 

impact of laws, regulations, and marketing practices on both competition and innovation in the prescription drug marketplace. 

The FTC has overseen this marketplace for decades and has produced highly respected reports on generic drug competition and 

anti-competitive practices in the drug marketplace. For example, in 

2002 the FTC produced a report on abuses of Hatch-Waxman that 

inappropriately delayed consumer access to generic drugs. The report resulted in important amendments to our law enacted the following year. Today, the FTC will tell us whether the methods we 

have used to sustain innovation in the drug industry, patents, and 

the market-based pricing with perhaps a short period of exclusivity 

are adequate to sustain innovation for biotech drugs, and they will 

tell us whether the argument is in favor of 12 to 14 years of exclusive marketing hold up to scrutiny. Objective evidence-based answers to these questions from the expert agency charged with overseeing competition and innovation of the drug marketplace will 

provide critical information to the committee as we move forward. 


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I look forward to exploring the FDC’s analysis and conclusions on 

these questions. Thank you very much, Mr. Chairman. 

[The prepared statement of Mr. Waxman follows:] 


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Mr. PALLONE. Thank you, Chairman Waxman. Next is the gentleman from Kentucky, Mr. Whitfield. 

OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF KENTUCKY 

Mr. WHITFIELD. Mr. Chairman, thank you very much for this important hearing today on an important subject matter. All of us are 

in total agreement that some type of generic pathway for biological 

drugs must be created. I think it demonstrates by the different 

bills that we have that there are some significant differences in 

how we create that pathway. We all understand yesterday that the 

Federal Trade Commission’s report was submitted and it leaves 

many of us with some serious concerns with their findings, specifically the claim that data exclusivity is essentially unnecessary in 

a generic pathway. The scenario outlined by the FTC would, I believe, unfairly tilt competition in favor of bio-similars by allowing 

them to capitalize on innovators substantial research and development efforts at any time. This would create even more uncertainty, 

I believe, for innovators when they make their R&D decisions. 

I might also say that Professor Dr. Henry Grabowski at Duke 

University, and you all can correct me if I am wrong on this, but 

I believe he has the only peer-reviewed document on this, and he 

summarized the findings of his study that concludes that without 

a data exclusivity period of between 13 and 16 years the future introduction of important new medicines could be delayed significantly or deterred altogether and that a strong innovative industry 

is necessary for an industry to thrive over the long term. So we 

find ourselves today trying to balance the need for new drugs providing low cost medicines for our senior citizens, and so this hearing is vitally important, and I certainly look forward to hearing 

from the Federal Trade Commission today and learning more about 

their report and how it compares with Dr. Grabowski’s report. And 

thank you very much. 

Mr. PALLONE. Thank you. Next is the gentlewoman from California, Ms. Eshoo, and I want to thank her also for all her work 

on this issue. 

OPENING STATEMENT OF HON. ANNA G. ESHOO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. ESHOO. Thank you, Mr. Chairman, and good morning to everyone that is here. I am pleased to be here to discuss competition 

in the biotechnology industry, but I have to say that I am puzzled 

and somewhat disappointed by the subcommittee’s approach to this 

critical issue. Everyone understands that this is not only critical, 

it is extremely complex. In May of 2007, over 2 years ago, the 

Health Subcommittee had a hearing on bio-similars. In October of 

2007 subcommittee members met to discuss bio-similar, and the result of that meeting, as members might recall, was a series of questions that the members provided to stakeholders and the FDA several months later in April of 2008. We received thoughtful, thorough responses from a large number of interested organizations 

and experts. 


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Now today this is the first committee action on bio-similars in 

more than 2 years and a hearing on an FTC report we received less 

than 24 hours ago. When we were informed that there was going 

to be this hearing, we immediately called the FTC to ask for a copy 

of the report. They said that we could not have it, that it would 

be available the morning of the hearing. I then, Mr. Chairman, approached you and asked if members could at least see this the day 

before. Why have a hearing if you can’t read the report that you 

are having the hearing on? So we did receive it. I don’t know how 

many members have read this report, and I don’t think that this 

process really reflects well on I think the most distinguished full 

committee and subcommittee in the House. 

Now I assume that the FTC has devoted significant efforts and 

resources in putting this report together, but I am not convinced 

that the FTC Commission is—and what they have in this report 

are exactly what we have been waiting for 2 years to hear about. 

I have met with many scientists, doctors, patients, who have much 

to contribute to the subcommittee’s deliberations, but we only have 

the FTC here today, and I guess it was the decision of the chairman not to have anyone else. This is a report that has not even 

had been subjected to the scrutiny of the public. I think that we 

can do better than that. Now what does the FTC report, as I read 

it as quickly as I could, what does it conclude? It says that increased competition in the biotechnology industry would result in 

lower prices for biologics. It is exactly why I introduced along with 

Mr. Inslee, Mr. Barton, the Pathway for Bio-Similars Act. 

This is the Kennedy legislation in the House. Now competition 

is always healthy. Anyone that has known me over the 16–1/2 

years I have been in the Congress knows that I believe that it benefits consumers whether it is in biotechnology, whether it is in telecommunications, whether it is in energy, whether it is health care, 

or whether it is baseball. I am a staunch advocate of fair competition and open markets, and I believe that my legislation will provide new competition while promoting sound science, and above all 

else protect patients. Any new pathway for bio-similars must provide effective safeguards for patients and sufficient incentives for 

the development of new treatments for the most deadly diseases 

that affect humankind today. 

I am pleased that my bill enjoys the support of just shy of 100 

members, bipartisan members, of the House, and it has received 

the endorsements of over 70 patient, physician, industry, and academic groups, as well as governors of 4 states. So I think that we 

need to be respectful of both efforts. And I am very proud of this 

because this is a complicated issue, and the amount of time spent 

with members, as well as members of the public and others, has 

been considerable. The establishment of a new regulatory pathway 

for approval of bio-similars is a critical matter for this subcommittee and the Congress to consider. I am eager to get to work 

on this, and I encourage you, Mr. Chairman, to hold more thorough 

and more inclusive hearings in the near future. I am glad that the 

FTC is here today. My understanding of the FTC is that most of 

its work deals with anti-trust. In my questions, I would like to 

know where the scientific data and the basis for the report has 

come from, but I nonetheless welcome the FTC here. You are an 


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important agency. And I thank you, Mr. Chairman, and I hope that 

when I ask you why we were doing it this way, your response was 

it is the only time we have before the August recess. 

I think it could have been broader. I think the subcommittee deserves that. I think the full committee deserves that. I think the 

House of Representatives deserves that on this issue which is so 

critical, so critical, to the well-being of patients and a process by 

which we can reduce the cost of biologics for people in our country. 

So, thank you, and I yield back. 

Mr. PALLONE. Thank you. And let me assure the gentlewoman, 

as I said, that we will have additional hearings on this very important issue. 

Ms. ESHOO. When do you plan to do that? 

Mr. PALLONE. Well, as I mentioned, we are going into the health 

care debate, so I can’t say when, but I promise you we will because 

this is a very important issue for the members. Let me turn to the 

gentleman from Texas, Mr. Burgess. 

OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. BURGESS. Thank you, Mr. Chairman. Mark me down as leaning ambivalent on this issue. Now just like everyone who sits on 

this committee, I know we have all spent months looking at the 

legislative proposals dealing with follow-on biologics. I know I personally have been in meeting after meeting with interested parties, 

and I have become convinced that this committee needs to hold 

more hearings. We lack sufficient information, primarily safety information, to render an informed opinion. We do have 2 bills championed by leaders on this committee, and we obviously need to explore those divergent points of view involved. Certainly, like Congresswoman Eshoo, I welcome Commissioner Harbour here. There 

are lots of things that I would like to discuss with the Federal 

Trade Commission. I am terribly interested in the lack of the ability of our physician community to be able to negotiate with our insurance community, but we don’t get to do that today. 

So my excitement with this hearing was tempered when I realized we really are only going to be focusing on a very narrow aspect 

of the bio-similars discussion, and that very narrow aspect will not 

include patient safety. Market exclusivity and patent integrity are 

important elements of any legislation authorizing a pathway for 

follow-on biologics. I was unaware that this committee had already 

achieved consensus on issues of safety, science, and the Food and 

Drug Administration. Assuming this committee has not reached 

such a consensus, then it is just downright frustrating that the 

Food and Drug Administration is not here in this room at this 

hearing. Now assuming that we didn’t want to hold a series of 

hearings on points of disagreement and wanted our first focus to 

be on market forces, as we will today, then a second panel representing concurring or dissenting opinions from industry would be 

appropriate in my opinion. 

And then maybe we could even hear from the scientists and the 

doctors. Mr. Chairman, I referenced last week I took a field trip out 

to the Food and Drug Administration last week. I had some wonderful interactions with some of the scientists who are working on 


emcdonald on DSK67QTVN1PROD with HEARING
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some of these very issues, the issues of bio-similars as they relate 

to monoclonal antibodies. This is the type of research that may 

unlock a lot of secrets that have been kept from our physician community for years, and it is just such terribly important information 

that I cannot believe we are going to be asked to make a decision 

without access to that information. I will be interested to what extent the Commissioner will be able to testify on the issue of interchangeability. Interchangeability is one of the foremost at issue of 

science, but it is importantly one of patient safety and that should 

have a physician and patient at the heart of the discussion. 

I would not typically associate the Federal Trade Commission 

with such discussion. Mr. Chairman, I am fascinated by the prospect of a reliable, bio-similar pathway. Texas is becoming a focal 

point for bio-technology development. Not only does this mean new 

therapies for previously untreatable diseases with just the chance 

of projection that 50 percent of the drugs by 2020 will be biologics 

so this is a huge economic issue for Texas as well. Just as scientists 

and doctors have just scratched the surface of potential biologics for 

the next generation of cures and treatments, this committee has 

plenty of work to do to find a compromise bill that solidifies our 

ambitions and meets or exceeds our expectations. No artificial 

deadline, and this goes to the health reform debate as well, no artificial deadline should compel us to ride rough shod over the deliberative nature of this body in regular order. To do so not only tarnishes this great committee but could literally mean life or death 

for our constituents. Thank you, Mr. Chairman. I will yield back 

the balance of my time. 

Mr. PALLONE. Thank you. The chairman emeritus, Mr. Dingell. 

OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. DINGELL. Mr. Chairman, thank you, and I commend you for 

holding this hearing, which is very important. We are here to discuss the findings of the Federal Trade Commission with respect to 

its study on how competition between pioneer biologics and followon biologics is likely to develop. This is a series of hearings, which 

I hope will take place, which is wrought with many, many questions of great importance and many fewer answers of any relevance 

or importance. We have a tremendous opportunity here to develop 

a follow-on biologics policy that will bring the competition needed 

to provide greater access on life-saving biological drugs. However, 

we also have a responsibility to ensure that the innovation that develops the current biologic products continues in a way that will 

breed new effective therapies or a new group of conditions. 

One thing the FTC report makes abundantly clear is that biologic products are different from small molecule chemical drugs. 

They are enormously complex, much longer, and they are also either products of or sometimes living organisms. The science is 

clearly different. The safety considerations between the 2 categories of drugs are different. And as the FTC report concludes, the 

competition between pioneer products and generic competitors is 

different. It must be noted that we will find that the traditional 

questions that FDA has had to address will be somewhat different 


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either in form or in total. And the question of whether it is safe, 

biologically equivalent, what are the side effects, contraindications, 

and whether it is effective are going to be interesting and different 

questions that have to be addressed. 

It also is going to be a major question before us as to how we 

address the question of biological equivalency and whether or not 

one drug is an honest, safe substitute for another which could properly be prescribed with expectation of helping rather than hurting 

the patient. In 1984, Congress granted the FDA authority to approve generic drugs, and we all commend Chairman Waxman for 

his leadership in that effort. We did not foresee the need for a similar pathway for generic biologics. The science has exploded under 

our feet since then and in certain instances biotechnology provides 

clear technical advantages over other traditional therapies. We also 

need to examine if exclusivity limitations that we create is reflective of true costs in time and resources. 

We also need to know how this is going to affect the cost of medicine and how it is going to impact on our efforts to reduce the tremendous skyrocketing now going on in health care costs. We also 

want consumers to make sure that there is affordable access to 

these life enhancing and sustaining therapies. What is the path 

forward on exclusivity? Is it 5 years, 12 years or 14 years, more or 

less? Eleven years the European has set forth. We need to create 

a framework that balances good science and the public health. We 

can also focus on patient safety and at the same time ensure that 

incentives remain for private innovation. 

The FTC report does a good job of laying out the economic and 

competitive effects of a follow-on biologics policy. However, we 

should be reminded that safety should be our number 1 priority, 

and protection of the American consuming public should be of the 

highest priority. Policies that protects the safety of the patient is 

paramount as we forge ahead in the new area of follow-on biologics. 

We should be thoughtful as we move forward but not allow fear to 

restrict us, but above all else we have got to move forward to get 

the answers to the question. Here are a few questions that I find 

troublesome. What standards will ensure that follow-on biologics 

are as safe as the original products, and that we provide the necessary knowledge to medical practitioners in the use of these products. 

As we study potential competition models, should we be guided 

by a one size fits all approach or should we allow different approaches, and, if so, when, how, and what discretion should we give 

FDA to use those, or should there be a variation from one product 

to another? What study should support follow-on biological applications? Can a generic biologic product be created that is genuinely 

or sufficiently interchangeable? People tell us yes, people tell us no. 

But in this area of enormous complexity, I am not convinced that 

we can give a decent answer to that question. I am convinced that 

all these questions could be answered and that there is a way forward in developing sound follow-on biologic policy that provides 

greater access to current products and supports innovation in developing new ones. 

I look forward to contributing to that discussion, and I know that 

this committee is fully up to the task for which we were created, 


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and that is dealing with questions of this kind. I am pleased this 

hearing is being held. I look forward to the testimony, and I anticipate much needed feedback from our members. And I thank you, 

Mr. Chairman. 

Mr. PALLONE. Thank you, Chairman Dingell. The gentlewoman 

from Tennessee, Ms. Blackburn. 

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Ms. BLACKBURN. Thank you, Mr. Chairman, and I want to say 

welcome to our witnesses today. Members on this committee have 

heard me talk a little bit about serving in the State Senate in Tennessee, and one of the things that I worked very diligently on while 

I was there was starting our Tennessee Biotech Association. And 

now that has 130 members across our state, and they really have 

become the recognized authority on biotech research in our state. 

Right now we have got about 300 companies that are life science 

companies that are working in Tennessee that are innovating every 

day, and they are working with pharmaceutical companies and bioscience companies large and small to create new products and 

therapies and protocols. And we are very pleased with the work 

that they are doing. 

We are also pleased with the work that is being done by many 

of our universities in Tennessee, which have taken a lead in this. 

And they received $580 million in external funding for biotech related research in our universities in the past year, and the University of Tennessee Health Science Center has Memphis Bioworks. 

We have complimentary work that is being done at St. Jude’s. We 

have the life sciences center where Vanderbilt has a partnership 

and that is in the mid state area East Tennessee State University 

of Tennessee and Oak Ridge over on the east side of our state, and 

in the past 6 years along with the funding that has gone to the universities you have seen just under $1 billion in venture capital go 

into innovations. 

So I am pleased to be able to praise that innovative industry in 

our state but I will tell you I am very concerned about protecting 

the intellectual property of the industry in that state, and, quite 

honestly, as I read through your report, it was something that was 

of concern to me. And I am going to have some questions for you 

today as we move forward with this hearing. One of the things that 

I felt as I read your report, if you followed the scenario, the patient 

scenario that you lay forth, then it appears that bio-similars could 

be brought to market while they are still infringing on valid patents. And as my colleagues know, last week when we debated the 

energy bill, I sought to bring intellectual property protection for 

those innovators that are working in the energy sector. Yesterday 

on the floor, Congressman Larson, Congressman Kirk and I had an 

amendment that went in to provide protection for this innovation. 

So this raises some red flags with me of how infringement could 

be allowed and product brought to market. It raises red flags to me 

that it is uncertainty that would be placed on our innovators. And 

I see that as a hamper to R&D which we badly need. I know I am 


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over my time, and we are going to have votes. I will yield back, and 

I do look forward to the questions. Thank you, Mr. Chairman. 

Mr. PALLONE. Thank you. The gentleman from Utah, Mr. Matheson. 

OPENING STATEMENT OF HON. JIM MATHESON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH 

Mr. MATHESON. Thank you, Mr. Chairman. I think we all know 

as we go into the 21st century and we look at the U.S. economy 

innovation is such a key factor in how our economy is going to succeed. I think it is very important to remember that in the context 

of today’s hearing because within the innovation economy few industries have more promise and more uncertainty and risk than 

the biotechnology industry. The biotech industry supports more 

than 3.2 million jobs in the United States, and we all know many 

of these are high wage jobs, but we should also acknowledge that 

this is an industry where the U.S. is still the leader in the world. 

This is one of those centers of excellence that is in the United 

States when you look at the global economy. 

Yet with all that good news more than 80 percent of the biotech 

companies in our country remain unprofitable, and a third of the 

companies had less than 6 months cash on hand. And this is with 

no competition from follow-on products. The companies that make 

up the majority of this industry are small. They have no source of 

revenue and they are operating solely on the hope that they will 

achieve a major breakthrough in medicine. So one of the main 

issues up for discussion today is the issue of date of exclusivity, 

how much time should an innovative biotechnology product have on 

the market to try to recoup investment in research and development before a follow-on biologic is approved. The average cost of 

developing a biologic is about $1.2 billion. 

Clearly, that is an expensive investment, particularly when you 

have no revenues coming in the door. I think we all can agree that 

competition in the market for medicines is a good thing. It brings 

down costs for individuals and for the health care system as a 

whole, and I fully support establishing a pathway for approval of 

follow-on biologics. However, I believe we need to be sure we are 

creating appropriate incentives for biotechnology companies to take 

the risks involved in bringing these medicines to patients. Now I 

understand that the FTC believes that 5 years is a sufficient period 

for data exclusivity for innovative biotechnology products. I disagree. 

As I said earlier, this is one of America’s strengths, but we got 

to look at the context of global competition. The exclusivity period 

in Europe is longer than 5 years. This is an industry that can move 

offshore in a moment, and as members of Congress, we need to 

take that in consideration when we set this type of policy. A recent 

report from Duke University shows that the break even point for 

most biologics is somewhere between 12 and 16 years. With an appropriate incentive, the researchers at Duke believe a few companies or venture capitalists will invest the necessary capital to research and develop a biotech product. 

These products are going to be developed in this country, not necessarily with taxpayer dollars. That last statement I just made 


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about this is an industry that is financed through venture capital 

and other private capital markets, and the public policy platform 

we wet will establish proper incentives, I hope, to allow that private investment to happen. These are the issues we ought to be 

talking about today. It is our job to take these steps to make sure 

this innovation agenda has an opportunity to succeed in this country. And I would hope, Mr. Chairman, as others have voiced that 

this subcommittee can bring in other witnesses besides just the one 

panel today to bring in other points of view as we examine this 

very important issue. I look forward to working with the committee 

on that, and I will yield back the balance of my time. 

Mr. PALLONE. Thank you. The gentleman from Georgia, Mr. 

Gingrey. 

OPENING STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA 

Mr. GINGREY. Mr. Chairman, thank you very much. I would tend 

to agree with Ms. Eshoo that getting the report from the FTC at 

2:00 yesterday afternoon really allows very little time to go through 

the 120 pages. I have to admit that I haven’t had an opportunity 

to go through any of it, so I certainly do look forward to the witness 

that we are going to hear from shortly. This is a hugely important 

issue, this issue of follow-on biologics, and as we all know there are 

2 bills introduced on the one hand by leadership on the majority 

side combined with some leadership from the minority side, and 

also a bill on the minority side co-authored by Ranking Member 

Barton. I looked at these bills. I have studied them. I have tried 

to understand on the one hand 16 years, I guess, of exclusivity and 

on the other hand 8 years. The issue of interchangeability, once 

these generic biologics, follow-on biologics, are actually approved by 

the FDA, I think is a very important issue. 

And it is tough. It is a tough thing to decide on, and we just 

need, as my colleagues have said, as much information as we can 

possibly get, particularly in regard to patient safety because as the 

chairman emeritus said these are not single molecules or small 

molecules as we dealt with back in 1984 under Hatch-Waxman. 

These are different. These are living cells, and every manufacturing process for these drugs are different, and there is no way 

to make them completely the same, so it is going to be a tough 

thing. I would hope that maybe there is room for compromise, quite 

honestly. As we listen to the debate and study further the 2 particular bills because there are great members that are trying to do 

the right thing and trying to make sure that we get cost effective, 

I don’t want to say cheap, but cost effective, the very expensive 

medications to the public as soon as possible, but also that we have 

to always keep in mind safety. So I look forward, Mr. Chairman, 

to the hearing and getting more information on this hugely important issue. And yield back. 

Mr. PALLONE. Thank you. The gentlewoman from California, Ms. 

Harman. 


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OPENING STATEMENT OF HON. JANE HARMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. HARMAN. Thank you, Mr. Chairman. I am a new member to 

this subcommittee, and I surely agree with Ms. Eshoo that this 

subject is complex, and I am persuaded that I don’t know enough 

about it to have a final opinion. That is why I am happy we are 

having this hearing, and that we will have a series of hearings in 

the fall. I have not co-sponsored either of the pending bills because 

I feel I need to learn more. But surely I know enough to believe 

that we should be getting reports more than 18 hours in advance 

of hearings, and I hope that in the future that will happen so that 

all of us can be as knowledgeable as possible. I just want to say 

a couple things about the general subject. 

First of all, although new to the committee, I am not new to this 

earth and I am not new to Congress, and I remember 1984 when 

Henry Waxman did something very impressive, and that was to 

strike an agreement with his political opposite Orin Hatch on a bill 

that the drug industry strongly opposed and that has led to considerable progress, so I really think these things can happen and be 

done right, and that is a history in our committee, and hopefully 

we will follow it again. But this time, I think this subject is more 

complicated and I think the implications, as Mr. Matheson said, for 

the future of the U.S. industry are grave. I don’t know much about 

this subject, but I do know what we did to the U.S. commercial satellite industry when in my opinion we got it wrong in the late 

1990’s, and we basically took away the market edge for our U.S. 

satellite makers. 

Now we are trying to get it back. Hopefully we will, but we lost 

10 years, and so I just want to make sure we get this right, and 

I want to be sure that I make the best contribution I can as a hopefully thoughtful member of this committee. So I thank you for holding this hearing, and I look forward to learning a lot more about 

this subject. I yield back. 

Mr. PALLONE. Thank you. The gentleman from Pennsylvania, Mr. 

Pitts. 

OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF PENNSYLVANIA 

Mr. PITTS. Thank you, Mr. Chairman. I would like to thank you 

for convening this hearing on the Federal Trade Commission’s report, Emerging Health Care Issues: Follow-on Biologic Drug Competition. I think all of us realize the potential of follow-on biologics, 

and I believe we all agree on the need to set up a pathway sooner 

rather than later. I must say also that it would have been more 

helpful to give the members a little more time until we had a time 

to read and analyze this 120-page report, which was released just 

yesterday before having the hearing. I am quite concerned by the 

report’s assertion that no period of data exclusivity is necessary for 

pioneer or brand biologics because patents and market pricing 

should provide sufficient protection and incentive. This logic has 

worked well for small molecule drugs governed by Hatch-Waxman 

but as this report points out multiple times there are significant 

differences between small molecule drugs and biologics. 


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As the report acknowledges, a generic small molecule drug is 

identical to its brand counterpart. A follow-on can only be similar 

to the brand biologic. It is this space between identical and similar 

that opens the door for a follow-on to circumvent or skirt one or 

more of the brand biologic’s patents. With this uncertainly over 

whether a patent will actually protect the brand biologics investment biotech companies and the venture capitalists that fund them 

may reassess the cost and risk involved in the development of new 

biologics and opt not to go forward with new drug development. 

Stifling innovation and potentially impeding patients’ access to the 

most promising, cutting edge biologics is surely not the goal of anyone on this subcommittee. 

Data exclusivity provides the certainty brand biologics need to 

spend hundreds of millions of dollars and years investing in the research, development, and approval of new drugs, and the assurance 

that this investment can be recouped. I would ask our witnesses to 

carefully explain why they believe that patent circumvention by 

bio-similar companies is not a valid scenario. Thank you, and I 

yield back the balance of my time. 

Mr. PALLONE. Thank you, Mr. Pitts. The gentlewoman from the 

Virgin Islands, Mrs. Christensen. 

OPENING STATEMENT OF HON. DONNA M. CHRISTENSEN, A 

REPRESENTATIVE IN CONGRESS FROM THE VIRGIN ISLANDS 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman, and thank you for 

beginning this discussion on this very important and complex issue 

at this hearing. As I understand it, the report was requested basically to determine if follow-on biologics would result in reductions 

in cost of these complex but very important therapeutic drugs, and 

anyone who knows me would know that one of my concerns is that 

life improving or saving medication be accessible to everyone, and, 

yes, cost is an important barrier to that. But as a physician, safety 

trumps everything. I have seen substandard meds marketed in the 

Caribbean, and in small molecular drugs that may not be a dangerous difference. The situation with bio-similars or follow-up biologics is totally different. I only had a chance to read the executive 

summary and some of the first pages of the report, but what I have 

taken away so far is a clear understanding that biologics are very 

complex, large molecules produced under very sensitive conditions 

that are not easy to reproduce exactly, that significant investment 

is made in their production and that if reduction of cost is what 

has generated the request for this report FOBs are not likely to result in much of a price decrease. 

If the latter is true then why sacrifice safety? And some questions remain unanswered. Why accept a similar rather than the 

same in the case of such a complex medication when a tiny difference could make a difference in its action and its 

immunogenicity. I am puzzled by the assertion also that a shortened patent life will not stifle innovation. If it takes 12 to 14 years 

to recoup investment as demonstrated by a peer review article by 

Duke Professor Grabowski, and that is likely after may trials have 

failed at that company and they have experienced financial losses, 

why should these complex molecules not have a longer time? Very 

importantly, the report states that technology is not yet, and I am 


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quoting here, ‘‘technology is not yet robust enough to determine 

whether an FOP product is interchangeable with the pioneer product.’’ 

That statement, plus the fact that not a single country in the EU 

has authorized interchangeability, and several have outlawed it, 

should slow down any rush to allow products that are only similar 

to the pioneer, and to require more of any follow-on manufacturer 

to prove safety. It seems to me that sufficient uncertainty exists so 

that the FTC didn’t even make a specific recommendation for a period of exclusivity. I would like to see these important drugs reach 

everyone, and that means exploring ways to ensure that that happens, including having the pharmaceuticals look after a period of 

time perhaps reducing the costs, but I am convinced that shortening the time of patent and data exclusivity would adversely impact needed innovation, and it seems to me that based on the complexity of the large molecules and the lack of information on several factors, we should err on the side of safety and make sure that 

we do no harm. So I welcome Commissioner Harbour and look forward to your testimony. Thank you, Mr. Chairman. 

Mr. PALLONE. Thank you. The gentleman from Indiana, Mr. 

Buyer. 

OPENING STATEMENT OF HON. STEVE BUYER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA 

Mr. BUYER. I have come here today, I also like my colleague, 

Jane Harman, I have not co-sponsored either of these 2 bills yet, 

and I find myself in a curious position why we are even seeking 

the counsel of the Federal Trade Commission on an issue whereby 

we are most concerned with regard to the drug safety and efficacy. 

When I look at the commissioners from the Federal Trade Commission, none of them have any experience in public health whatsoever. We got lawyers. Well, I am a lawyer too, so what I need is 

not the advice or counsel of another lawyer. I need advice and 

counsel from public health, from scientists. So we have a conversation today lawyer to lawyer. You can give me your opinion on what 

you think the marketplace is and what it is like, and I guess if you 

are going to tell me about trying to promote competition in the 

drug industry, big versus small, and how we protect innovation as 

part of your core mission of the FTC, I guess we may as well ask 

you to report on NASA. 

Gee, let us talk about what big company it out there and how 

we can promote innovation to do exploration in space. Hey, the last 

frontier isn’t even space, it is marine. So maybe we should ask for 

a report from the FTC about the exploration on the ocean floor. 

You can give me an opinion on that. Maybe I should ask for—I will 

just make it up. So I am sitting here today as a curious member 

of Congress that I have come here to listen to lawyers tell us what 

they think about drug efficacy and safety. Now I haven’t had a 

chance to read this. I am more than anxious to look at it. I am also 

curious as to who initiated this. Did anyone from Congress ask you 

to do this? I don’t know. So I am interested for you to let us know 

why you initiated this, why this group of lawyers think that your 

opinion is so important with regard to efficacy and the safety of 

drugs. 


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Now what bothers me the most is that what I have learned over 

the years in dealing with the drug industry and biologics is that 

we do everything we can to promote this innovation, yet we try to 

find science in narrow populations, and it is very challenging because when you go into the marketplace, how do you raise that at 

risk capital, and if we don’t give these companies an opportunity 

to recoup their cost and make a profit, they won’t go into narrow 

spectrums, and if they won’t go into narrow spectrums then people 

then turn to government and say that government, you have to do 

it. And if it is all about innovation, safety, and efficacy, I want to 

hear from the experts, Mr. Chairman. So what I am hopeful is that 

if you are going to do this today, please bring us a panel of experts, 

the FDA, bring in the scientists so that we can have equal quality 

here with regard to substantive testimony. That is what I am looking for. That would be my request of you, Mr. Chairman. I yield 

back. 

Mr. PALLONE. The gentleman from Texas, Mr. Green. 

OPENING STATEMENT OF HON. GENE GREEN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GREEN. Thank you, Mr. Chairman, and like my colleagues, 

I have concerns about this hearing on the FTC’s report that we received yesterday on follow-on biologics competition. We have heard 

this will be the only hearing on the issue of follow-on biologics because the schedule will not accommodate additional hearings on 

the topic. If we are going to have a fair debate on follow-on biologics and the issues surrounding H.R. 1548, the Eshoo-Barton-Inslee Pathway to Bio-Similars Act, which I am a co-sponsor, and H.R. 

1427, the Waxman-Pallone-Deal Promoting Innovation and Access 

to Life-Saving Medicine Act, the arena for those should not be centered around a hearing with one witness from the FTC. 

Follow-on biologics are extremely complex issues and members of 

this committee are divided between the 2 bills pending before us. 

One hearing with one witness who isn’t from the FDA, an innovator company, a generic drug company, or even a patient who has 

used biologics is not a true hearing on the difficult issues surrounding follow-on biologics. We believe we need to have a hearing 

with at least the FDA before this committee moves forward with 

any legislation on follow-on biologics. I think we can all agree that 

there needs to be a regulatory path in this country to follow-on biologics, and however we resolve the differences between the 2 bills, 

we need to consider the implications for employers, innovators, the 

generic industry, and, most importantly, the patients who depend 

on these life improving and life-saving therapies. 

Biologics offer tremendous promise in the treatment of disease 

but there is no question we have to get it right. The undeniable 

fact is biologics are different from the small molecule drugs and 

present unique concerns about their safety and effectiveness. Holding one hearing that doesn’t allow us to explore the questions such 

as what effect does a small change in immunoacid sequence 

produce, is that effect large enough and concerning enough to warrant additional clinical trials before the follow-on biologics is available to the public, can we in good conscience consider the followVerDate Mar 15 2010 08:39 Jun 29, 2012 Jkt 73747 PO 00000 Frm 000029 Fmt 06633 Sfmt 06633 E:\HR\OC\73747.XXX 73747

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on product safe if they are never even tested on the human population? 

I share the goal of lowering patients’ costs to follow-on pathway 

but not at the expense of the same patients’ safety. Any action by 

the committee must balance the desire for the lower cost of biologics with the need to preserve the incentives for innovation and 

patient safety so that more Americans can benefit from the therapeutic promise of biologics. And again I thank you and yield back 

my time. 

Mr. PALLONE. Thank you. The gentleman from Illinois, Mr. 

Shimkus. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. SHIMKUS. I knew I could be here when the gavel dropped 

and go to the next meeting and still make it, so I apologize to the 

Commissioner. I would just read from the report here on the executive summary. Current technology does not yet allow the creation 

of an exact replica of a pioneer biological drug product according 

to the FDA. In addition, technology is not yet robust enough to determine whether the follow-on biologic product is interchangeable 

with the pioneer products such that a patient would be able to 

switch between the 2 products without risk of an adverse effect. 

Follow-on biologics are not chemical compounds. We need more 

hearings on this, Mr. Chairman, and we need to have science 

brought in. And with all respect to the FTC, they are not the ones. 

They are not the ones to give us the direction on the safety and 

efficacy on follow-on biologics, so I look forward to that, and I hope 

we can follow up with more hearings. I yield back. 

Mr. PALLONE. Thank you. The gentlewoman from Wisconsin, Ms. 

Baldwin. 

OPENING STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN 

Ms. BALDWIN. Thank you, Mr. Chairman. And thank you, Commissioner Harbour, for joining us today. I have really been interested in the issue of follow-on biologics for a number of years. I 

happen to represent a district that is rich in intellectual capital in 

this area. The University of Wisconsin-Madison has produced some 

of the world’s leading research in biologic drugs. We also have an 

unique entity in my district called the Wisconsin Alumni Research 

Foundation. We call it WARF. And what they do is they work with 

business and industry to transform university research into real 

products benefitting society at large. It was founded in 1925 to 

manage the University of Wisconsin-Madison discovery that eventually eliminated the childhood disease rickets, and today WARF 

holds nearly 100 patients related specifically to biologics. 

I am certainly supportive of the creation of a pathway for the approval of bio-similars, and we will hear from the FTC this morning 

that when we do create this pathway current patent protections 

coupled with market-based pricing are sufficient to continue to 

spur innovation in the biologic drug market. And yet on the ground 

I hear often times the opposite is true. Even if with current patent 


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protections and without a pathway for bio-similars, WARF is having trouble finding companies to buy and license those 100 plus 

biologic patents that I referred to and that they currently hold. Developing biologic drugs is a billion dollar enterprise with an extraordinarily high failure rate. To take that on knowing that another company could invest a fraction of that amount and take 

even a small portion of your market share may be enough to 

rethink the enterprise altogether. 

I am extraordinarily proud of the companies in my district who 

have taken on this risk in hopes of saving lives and improving 

health. Just one example is the example of Flugen located in Madison. They are working on developing influenza vaccines, and we 

know that this is a timely and critically important enterprise. 

Flugen, like the vast majority of biotech industry colleagues, is a 

very small company. It does not have the profit margins of 50 and 

60 percent, yet these are the profit margins that are used to conduct these economic analyses that conclude that only minimal data 

exclusivity is necessary. Without sufficient data exclusivity protection Flugen faces the risk that a company will really come in and 

take a free ride off of their clinical data and design around their 

patent forcing them out of the market entirely. 

One final point, Mr. Chairman. The FTC report seems to conclude that a long period of data exclusivity would hamper innovation. Currently, with no pathway biologics enjoy infinite data exclusivity and yet we have had an astounding innovation in this arena. 

So you really only need to look to the second congressional district 

in Wisconsin to see the best proof of that. Thank you, Mr. Chairman, and I yield back my balance of time. 

Mr. PALLONE. Thank you. The gentlewoman from North Carolina, Ms. Myrick. 

Ms. MYRICK. Thank you, Mr. Chairman, but I will waive. 

Mr. PALLONE. The gentleman from Pennsylvania, Mr. Murphy. 

OPENING STATEMENT OF HON. TIM MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA 

Mr. MURPHY OF PENNSYLVANIA. Thank you, Mr. Chairman. Part 

of what we have to do here with Solomon’s sword is to understand 

that drugs that are not affordable offer little consolation, and a 

drug that is not invented offers little cure. A couple years ago when 

we had a hearing on this issue of follow-on biologics, I talked about 

a constituent of mine who had pancreatic cancer, and he at that 

time was taking experimental biologic drug which actually shrank 

his tumors down considerably, but unfortunately ended up with 

some kidney failure and he died in the process. It was exciting to 

watch how his cancer was going away and otherwise would be a 

lethal problem for him. It was troubling to see how he had to jump 

through a lot of hoops to get the treatments. 

But, moreover, I want to make sure that we are continuing to do 

everything we can to encourage companies to make the investments to come up with these cures. I know that part of what we 

are facing here is a way that once we come up with these cures, 

how do we make sure that people can afford these drugs, and that 

is what I hope we have a lot of discussions on, a lot of hearings 


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to really work out some mechanism whereby these become affordable. But again I say that if the drug is not invented, there is no 

cure, and, therefore, no hope. And I hope that as we proceed with 

this, we will both hear from witnesses with some ideas along these 

lines, but also continue to deliberate among ourselves in using all 

that is possible to make sure that we do not stop either end of this. 

And with that, I yield back. 

Mr. PALLONE. Thank you. The gentleman from Ohio, Mr. Space. 

OPENING STATEMENT OF HON. ZACHARY T. SPACE, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Mr. SPACE. Thank you, Mr. Chairman, for the opportunity to provide my perspective on what is clearly a very difficult and somewhat controversial issue. In listening to the opening statements of 

my colleagues on both sides of the aisle, it is clear that we are arriving at a consensus, and as very eloquently stated by Mr. Murphy 

from Pennsylvania, the need to innovate is directly conflicting right 

now with the need to provide affordable biologic medication. We 

have seen a tremendous boom in the manufacture of biotechnology 

and industry. Generally, the United States has been a leader, and 

it is something that we can be very proud of. I am sincerely torn 

right now on this issue because I have a child who suffers from a 

disease who is alive today because of biologics, and I understand 

the need to foster innovation to create an environment in which 

those biotech companies that are flourishing in this country right 

now are able to take the risks necessary to innovate and create 

new treatments and cures. 

At the same time, I come from a district where many people 

don’t have quality health care. Many people do not have the ability 

to pay considerable sums for these sophisticated medicines. And I 

do take hope in listening to the opening statements of my colleagues on both sides of the aisle that this committee will face this 

challenge in a way that it should with a sincere and passionate desire to do the right thing. I look forward to working with you, Mr. 

Chairman. I appreciate the hard work that you have devoted to 

this issue. And I do look forward to hearing the testimony today, 

and I yield back. Thank you. 

Mr. PALLONE. Thank you. The gentleman from Georgia, Mr. Barrow. 

Mr. BARROW. I waive. 

Mr. PALLONE. The gentlewoman from Ohio, Ms. Sutton. 

OPENING STATEMENT OF HON. BETTY SUTTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Ms. SUTTON. Thank you, Mr. Chairman for holding this extremely important hearing, and I look forward to hearing what the 

panelists have to say. In the United States, competition has always 

been an engine for innovation, and that has been true in the health 

care and the industry that supports it. And while national unemployment numbers continue to be a source of concern the Bureau 

of Labor Statistics reported that in May of this year health care 

employment increased by 24,000. This increase is in line with the 

average monthly job growth so far in 2009. Clearly, when it comes 

to the need for health care, demand far outweighs supply and it is 


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important to nurture the technology and advancement that leads 

to medical breakthroughs. However, in doing so, we must also consider that those who use our health care system, we have to be accountable to them as well. 

Patient access to life-saving technology and drugs is critically important with the cost of health care bankrupting American families. We must consider how we can make things work for our citizens. It is important that we have a pathway for options such as 

biologics, but it is equally important that this pathway be safe. Our 

experience in the field of generics has taught us that multiple entrants into a pharmaceutical field or category can drastically drive 

down price and increase accessibility of drugs for patients. 

And I am eager to hear from our panelists about how the FTC 

envisions the market for follow-on biologics that will allow innovation to flourish, and also serve to better our health care system and 

protect the health and the wallet of Americans. I yield back. 

Mr. PALLONE. Thank you. The gentleman from Iowa, Mr. Braley. 

OPENING STATEMENT OF HON. BRUCE L. BRALEY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA 

Mr. BRALEY. Thank you, Mr. Chairman. If you have been paying 

attention to what my colleagues have been saying this morning, 

you will appreciate this is a tough job. This is a tough job that we 

have. I have friends on both sides of this issue. You hear great arguments on the strengths and weaknesses of these various proposals, and I think the thing that unites us all is a strong desire 

to make something happen that is going to benefit the people who 

are going to realize whatever potential medical gains there are to 

be realized from the research and development of biologics, and 

that is what brings us here and motivates us. I want to thank the 

chairman for holding this important hearing. And we all know that 

establishing a fair pathway for follow-on biologics is extremely important, and we stand to see tremendous health care improvements 

as biologics continue to come to the market. 

And when you look at the challenges we are facing with the 

broader health care reform debate these are questions that have 

enormous implications going forward, and that is why we are all 

so focused on this issue. We know that biologics have improved the 

treatment of many Americans and save countless lives, and these 

innovations will only see more and more use in coming years. The 

proteins that form the bases of biologics are extremely complex, 

and I must say the policy questions surrounding the creation of a 

pathway to the market are almost just as complex. Any pathway 

for follow-on biologics must ensure fair competition without discouraging innovation in the industry. 

We owe many of our biggest medical achievements to those who 

have spent significant time and resources researching and experimenting with drugs, and biologics is no different. We need to continue innovating and we must make sure that every American who 

needs them can access life-saving drugs and biologics that are a result of that innovation. I have been studying this issue closely since 

joining this committee and hearing from parties on all sides of the 

issue. I am glad to see that we are gearing up to address the issue 

today, and I am confident at the end of the day we will have a proVerDate Mar 15 2010 08:39 Jun 29, 2012 Jkt 73747 PO 00000 Frm 000033 Fmt 06633 Sfmt 06633 E:\HR\OC\73747.XXX 73747

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posal that both encourages innovation and ensures affordable access to those life-saving biologics. 

I look forward to continuing in these negotiations to make sure 

that Iowans that I represent continue to benefit from innovative, 

affordable medications. The FTC has a great deal of expertise and 

a long record of ensuring fair competition in the marketplace, but 

that record is sometimes not always perfect. They have thoroughly 

examined Waxman-Hatch in the past, and I always take their findings very seriously. That is why I look forward to today’s testimony, to the follow-up hearings we are going to have, and I want 

to thank the chairman for convening the hearing. 

Mr. PALLONE. Thank you, Mr. Braley. The gentleman from Maryland, Mr. Sarbanes. 

Mr. SARBANES. Thank you, Mr. Chairman. I don’t have much to 

add to what has been said. Obviously, we have on one end of the 

equation the need for research and development to proceed in a 

way that is meaningful and leads us to new discoveries that can 

benefit consumers. On the other hand of the equation, we have got 

the interest of affordability and access for the consumer. And we 

are struggling, or we are not struggling yet, we are working hard 

to figure out where the right balance is going to be. The testimony 

today is obviously going to be helpful in that process. I just hope 

that when we reach the balance, we come to it principally through 

the perspective of what makes sense for the consumer. And so I 

look forward to the testimony, and I yield back my time. 

Mr. PALLONE. Thank you. The gentlewoman from Illinois, Ms. 

Schakowsky. 

OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. As we continue 

moving forward on health reform legislation, it is important that 

we take a long, hard look at prescription drugs and how we can 

work together to reduce drug prices and increase patient access to 

life-saving drug therapies. I am a co-sponsor of H.R. 1427, and I 

thank Chairman Waxman and Chairman Pallone for sponsoring 

this legislation because I believe this bill effectively safeguards 

against unsafe drugs entering the market while allowing patients 

to access lower cost generic drugs. I recognize the importance of encouraging innovation in the pharmaceutical industry. As the report 

authored by the FTC shows, innovation will not be hampered by 

allowing biologic generics into the market. 

First, the research shows that it will most likely take 8 to 10 

years to develop the manufacturing capacity to make a similar and 

interchangeable generic for a brand name biologic. More importantly, the amount of money required to produce the generic between $100 million and $200 million will limit the number of generic manufacturers. In other words, assuring that generic manufacturers can enter the market after a 5-year exclusivity period will 

pose little threat to the brand name industry but it would have 

enormous pay backs for consumers. I strongly believe that encouraging competition particularly in the health care industry not only 


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promotes creativity and energizes researchers to discover better 

and more effective products but it reduces costs. 

I think it is important that we give this complex issue some context. Like many of the states represented on this committee, Illinois is facing a budget crisis, a deficit that is approaching $11 billion. As a result, many of the programs currently in place to help 

our citizens are facing drastic cuts. Among those programs headed 

for a cut includes the Illinois Cares RX program, a program that 

provides prescription drug assistance to 172,000 seniors with high 

drug costs. Many of these drugs cost patients tens of thousands of 

dollars each year. Some can be over $100,000, and out-of-pocket copayments could run $10,000 to $20,000 a year. We obviously have 

to do all we can to bring down drug costs for patients. 

I believe that H.R. 1427 will help us do that. Mr. Chairman, I 

look forward to working with you and further the health and wellbeing of our constituents and bring drugs to the market in a safe 

and timely and affordable way. I yield back. 

Mr. PALLONE. Thank you. The gentlewoman from Colorado, Ms. 

DeGette. 

Ms. DEGETTE. Mr. Chairman, I will submit my statement for the 

record. Let me just say an issue that none of us knew one thing 

about, we now are quite conversant, and I think we need to move 

forward and talk about how we are going to resolve it. I am very 

much eager to hear the testimony of Commissioner Harbour today. 

I think that will lend some light onto this very tough decision we 

have to make. And with that, I will yield back. 

Mr. PALLONE. Thank you. I think we have heard all the opening 

statements. I just want to make sure that is true. Yes. OK. We will 

now turn to our witness, and thank you for being here. First, let 

me say our witness, actually we only have one witness, is the Honorable Pamela Jones Harbour, who is the commissioner from the 

Federal Trade Commission. However, my understanding is she has 

been joined by Mr. Wroblewski, who is the prime author of the report. And he is not going to testify, but will be available for questions is the way I understand it. And we know we have 5-minute 

opening statements, and then we may get back to you later with 

additional written questions as well, but we will have questions 

from all the panelists, from all the members of the subcommittee 

today. So if you would begin, thank you. 

STATEMENT OF PAMELA JONES HARBOUR, COMMISSIONER, 

FEDERAL TRADE COMMISSION 

Ms. HARBOUR. Thank you, Chairman Pallone, Ranking Member 

Deal, and members of the subcommittee. I am Pamela Jones Harbour, a Commissioner of the Federal Trade Commission. I am 

joined by Michael Wroblewski, Deputy Director of the FTC’s Office 

of Policy Planning. Thank you for inviting us to testify here today. 

I appreciate this opportunity to provide an overview of the Commission’s recently released report called Emerging Health Care 

Issues: Follow-On Biologic Drug Competition. A primary goal of our 

report is to examine how competition is likely to evolve in biologics 

market in particular between pioneer biologics and follow-on biologics or FOBs. The report sets forth our findings regarding the 


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competitive dynamics of FOBs, and we hope that our recommendations will inform the legislative debate. 

I note that the report does not address any specific bills. The 

Commission recognizes that legislators are balancing many different objectives, as they seek to craft a solution that best protects 

the public interest. The Commission has limited its recommendations to competition issues, which are our core area of expertise. 

We believe, of course, that this competition perspective is of critical 

importance in the FOB debate, which is why we are grateful to 

have been given, literally, a seat at the table today. 

If Congress can create a balanced pathway for FOBs, and also 

pass legislation to eliminate pay-for-delay patent settlements between branded and generic companies in small molecule markets, 

then Congress will have taken substantial steps to ensure that all 

Americans have access to affordable life-saving medicines. On behalf of Chairman Leibowitz, I commend the Commerce Committee 

for moving legislation to ban these patent settlements through the 

Consumer Protection Subcommittee last week. The report’s basic 

premise is that competition between pioneer biologics and FOBs is 

likely to look much more like current competition between 2 or 

more branded drugs that treat the same medical condition, for example, Enbrel and Remicade, which both treat rheumatoid arthritis. It will look less like current competition between branded and 

generic versions of a drug and I will explain why the Commission 

reached this conclusion, and I will also identify some implications 

for legislation seeking to create an abbreviated regulatory approval 

pathway for FOBs. 

But first, I will begin by highlighting some important characteristics of the biologics marketplace. As you know, the emergence of 

biologic drugs has dramatically improved the lives of thousands of 

Americans over the past few decades. For example, the biologic 

Herceptin is used to treat breast cancer, and an annual course of 

treatment costs about $48,000 a year. One way to reduce the costs 

of biologics would be to authorize the Food and Drug Administration to permit follow-on biologics to enter the market once a biologic drug’s patents expire. However, there is no statutory or regulatory pathway to allow abbreviated FOB entry without the FOB 

applicant having to duplicate existing knowledge about safety and 

efficacy. This duplication represents an inefficient use of limited 

R&D resources. Also, as the FDA has explained, repeating all of 

the clinical trials raises ethical concerns associated with unnecessary human testing. 

Elements of the Hatch-Waxman Act provide a model for reducing 

FOB entry costs and addressing ethical concerns. Hatch-Waxman 

does not require generic applicants to duplicate the clinical testing 

of branded drugs that have already been proven safe and effective. 

Hatch-Waxman has successfully reduced drug prices, has broadened access, and has hastened the pace of innovation. And if payfor-delay settlements are prohibited, these benefits of Hatch-Waxman will be preserved. But as the report describes, according to the 

FDA, there are key scientific differences between biologic and small 

molecule drug products. Most notably, under Hatch-Waxman, the 

generic applicant must show that the product is bio equivalent to 


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the branded drug product. This is important because it means that 

the product is identical. 

In stark contrast, according to the FDA, biologic products cannot 

be perfectly duplicated, at least not based on current science. Technology is not yet robust enough to determine whether an FOB 

product is interchangeable with the pioneer product. Current FOB 

legislative proposals reflects the complexities of biologics. They 

would permit FDA approval of an FOB drug that is similar to, but 

not an exact replica of the pioneer biologic product. Under these 

proposals, the FDA could rely on its previous findings regarding 

the pioneer biologic drug’s safety and efficacy to the extent those 

findings would also be relevant to the FOB. An FOB manufacturer 

likely would save on some clinical testing expenses, which would 

reduce entry costs. 

So with that background in mind, let me turn to the Commission’s report. The purpose of our study was to evaluate how FOB 

competition is likely to develop and evolve, paying particularly 

close attention to the differences between small molecule and biologic drugs. The study was coordinated by an interdisciplinary FTC 

team, headed by Mr. Wroblewski, that included not only pharmaceutical industry experts, but also patent lawyers and economists. 

As part of its inquiry, the Commission solicited 2 rounds of public 

comments which attracted submissions from approximately 30 industry participants and other stakeholders. 

In November 2008, the Commission conducted a public roundtable discussion that included over 30 panelists. The Commission 

also has examined European markets where FOB entry has occurred. In the interest of time, let me briefly summarize the 4 

major reasons why FOB competition is not likely to be like generic 

brand competition. First, it is the extraordinary cost and time necessary to develop an FOB, which will sharply limit the number of 

competitors who can afford to enter, and also will limit the discounts the FOB can offer in relation to the pioneer price. Second, 

follow-on entry will not radically erode the pioneer’s market share. 

Third, the specialty pharmaceutical characteristics of FOBs are 

likely to further constrain the FOB entrant’s ability to gain market 

share. And the fourth reason is because biologics are provided in 

clinic-type settings as part of medical treatments. They are not 

purchased and reimbursed in the same manner as small molecule 

drugs. 

As a result of all of these factors, the Commission’s report predicts that FOB markets are likely to develop with the following 

characteristics. First, that FOB entry is likely to occur in biologic 

drug markets with more than $250 million in annual sales. Only 

2 or 3 FOB manufacturers are likely to attempt entry in competition with a particular pioneer drug product. These FOB entrants 

likely will not offer price discounts larger than 10 percent to 30 

percent of the pioneer product’s price. Although this discount is not 

as steep as with small molecule generic drugs, it does represent 

millions of dollars in consumer savings for these very expensive 

products. 

Pioneer manufacturers are expected to respond by offering competitive discounts to maintain their market share. This price competition likely will increase consumer access and further expand 


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the market. Without automatic substitution, FOB market share acquisition will be slowed. Pioneer manufacturers likely will retain 

70 percent to 90 percent of their market share. This means that 

a pioneer firm will continue to reap substantial profits for years, 

even after entry by an FOP. FOB market dynamics will contrast 

sharply with the market dynamics of generic drug competition, 

where lower-cost generic entry plus automatic substitution lead to 

rapid erosion of the branded drug’s market share. When the first 

generic drug enters the market, it generally offers a 25 percent discount off the branded drug’s price. As additional generic firms 

enter, and often there are 8 or more of them, the price discounts 

reach as high as 80 percent. 

Given these likely dynamics of FOB markets, the Commission 

next asked whether any additional—— 

Mr. PALLONE. Commissioner, I am sorry, but you are like twice 

the time so far so—— 

Ms. HARBOUR. OK. Then I will stop. 

Mr. PALLONE. No, no. Just wrap up. I don’t want to stop you 

completely. Just try to summarize the rest, if you could. 

Ms. HARBOUR. I would say that the findings have several implications for the design of an abbreviated approval system. I think 

first pioneer manufacturers are unlikely to need additional incentives to continue to innovate in the face of FOB entry beyond the 

existing patent protection and market-based pricing. I would be 

ready to answer questions now. We can engage in a Q and A, and 

I know that the committee is very interested to hear what we have 

to say, so thank you. 

[The prepared statement of Ms. Harbour follows:] 


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Mr. PALLONE. Thank you very much. I always hate to stop anyone but we have time constraints. We are going to have a series 

of questions. I am going to start, and then we will go back and 

forth between Democrats and Republicans, as you know. First of 

all, I want to thank you for the report. As the expert agency 

charged with overseeing competition, as you mentioned, in the drug 

marketplace, the FTC’s conclusions on how much exclusivity is 

needed to sustain innovation, I think is crucial to any resolution of 

many of the questions that have been raised on this issue. And I 

have to be honest to say that I, of course, hear mostly from people 

who have a financial stake in this, and I think it is essential that 

we have an objective assessment with regard to exclusivity, and 

that is one of the reasons why I think it is really crucial that you 

are here today and that this report came out. 

Now members of the biotech industry argue that their patents 

are not as strong as those on traditional drugs, and are not strong 

enough to protect them from competition from follow-on biologics. 

If I understand you correctly, the FTC has reviewed all the evidence provided by the industry, as well as relevant patent law, and 

has concluded that the industry’s claim is unsupported by the evidence. And this is an extremely important point because members 

of the biotech industry have premised their argument for a 12 to 

14-year exclusivity period on the claim that their patents cannot 

fulfill the role they are supposed to. And it is important, I mean 

this is important enough that I want to be sure I understand your 

conclusions, and that there is no doubt about it. 

So let me ask 3 questions. First, are patents on biotech drugs too 

narrow or too weak to protect them from competition from followon biologics? And, Mr. Wroblewski, obviously can answer as well. 

Ms. HARBOUR. Yes. Mr. Wroblewski is the expert here, but I 

would say that our research has shown that the patents are strong 

in this area. In fact, as we look at the sector, the biotech sector, 

they have been very strong. The stocks in that area actually has 

been very strong and the general sector stock prices have gone 

down 30 percent, but in the biotech sector they have only gone 

down 15 percent. So we have not seen as much erosion in that 

area, and I do believe that the patents are strong in that area. 

Mr. PALLONE. Maybe I will just go to the second question. The 

second question is will biotech patents provide less protection from 

follow-on biologics than the protection against generic competition 

offered by patents on traditional drugs? 

Mr. WROBLEWSKI. The patent questions are really central to this 

entire debate. What we did was we examined—currently there is 

branded competition between competitors, and so what we did is 

we looked to see—we looked at all of those cases, which the industry gave us, and the ones that we found—all the cases that are out 

there doing our own research, and we broke them into 2 groups. 

The first group was the patents have been very strong. Both the 

drug molecule patents and the process patents have been very 

strong to keep other branded competitors off the market. When we 

looked at those cases in which the branded competitor or the pioneer had lost, the cases really turned on a factual determination 

that was central to that patent or how those claims were drafted. 


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It wasn’t because the law prohibited them to draft their claims in 

a broader way. 

And there are PTOs written, description guidelines, that say this 

is how you can—the legal requirements to get a broad patent to 

protect against those types of claims that FOBs are likely to make. 

The written guidelines allow the claims to be drafted broadly 

enough to protect against those types of patents. The one last thing 

we did is there was a great study that came out about a year ago 

that surveyed all of the patent cases in terms of has the law 

changed so that it is very difficult to get a broad scope on your patient to kind of guard against the potential threat of an FOB, and 

it found that the law had not changed and that the patent holders 

have the ability to draft their claims, to draft their patents to provide a potent shield against FOB competitors. 

Mr. PALLONE. All right. Let me just ask my third question quickly. Is there any defect in the protection offered by biotech drug patents that justifies a longer exclusivity period than the period available to traditional drugs? 

Mr. WROBLEWSKI. We found that there are no defects. There is 

an argument that there may be drugs that have been discovered 

but somehow are unpatentable because they are not novel any 

longer, and the requirement to get a patent is that a drug has to 

be novel. If that is the case, and we haven’t seen any evidence that 

that is the case, then an exclusivity period similar to the way 

Hatch-Waxman had a 5-year exclusivity period for a new chemical 

entity that didn’t have patent protection. Hatch-Waxman also gives 

3 years for a new indication because that indication couldn’t get 

patent. If there is something new that is being delivered that the 

patents won’t incentivize, then it may be very appropriate to have 

an exclusivity period to encourage the companies to engage in the 

expensive R&D to test those drugs. 

Ms. HARBOUR. Such as in the drugs for children population and 

the diseases that affect very small populations. That would be an 

example where one would offer an exclusivity period. 

Mr. PALLONE. And not otherwise? But not otherwise? 

Ms. HARBOUR. Unless there was an unpatentable drug as Mr. 

Wroblewski indicated. 

Mr. PALLONE. OK. Thank you very much. Mr. Deal. 

Mr. DEAL. First of all, let me make sure that I understand since 

there has been criticism about the scope of this hearing today, 

what I understand you to say is that your study and your testimony today is to deal with this question of competition and how 

it will evolve in a follow-on biologic marketplace, and questions like 

safety, interchangeability, those are issues that best address themselves to the Food and Drug Administration and not to you, am I 

correct? 

Ms. HARBOUR. That is precisely correct. 

Mr. DEAL. I didn’t want you to be criticized for something you 

were not undertaking to do here today, and I think that is important because we all are concerned about safety. We are all concerned about the things that are within the province of the FDA. 

Let me focus in on what you have testified to, and what your report 

identifies. Most of us have heard from the lobbying community 

about how long should the period of exclusivity be. Now what I 


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hear and what I see at least in the summary that I have read of 

your report is that you don’t even feel that there is even a need 

for any exclusivity period, and specifically I think your statement 

says the drug had already been incentivized through patent protections and market-based pricing, so you are saying that there are 

2 protections that the pioneer drugs enjoy that is somewhat different from the chemical-based arena in these areas, one being that 

patents are strong enough. 

And let me ask you specifically about that. As I understand you 

to say, the reason you think patents are stronger than we might 

be led to believe is that in this arena there are more and varied 

patents in the follow-on biologic arena than in the chemical arena, 

specifically including patients on manufacturing and the technology 

platforms on which they are based, is that correct? 

Ms. HARBOUR. That is correct, and there is another component 

too that competition resembles brand to brand competition and in 

brand to brand competition the patents protect the innovation. In 

the follow-on context, you have the method of treatment patents. 

You have the product by process patents, the manufacturing process including the cell lines, so, yes, the report concludes that patents have been shown to be strong in this area. 

Mr. DEAL. And the second component that gives protection that 

is more unique to this follow-on arena than chemicals is what you 

refer to as market-based pricing, and I think you have already told 

us that you do not expect the drastic reduction in pricing to occur 

on the pioneer product just because a follow-on comes on to the 

market. 

Ms. HARBOUR. That is right. 

Mr. DEAL. And that is an additional protection that the pioneer 

enjoys in this arena that they do not necessarily enjoy in the chemical arena? 

Ms. HARBOUR. And the characteristics of this market is a followon, there would only be 2 to 3 follow-ons that would enter the market, and those follow-ons would only take 10 percent to 30 percent 

of the market share away, so the branded pioneer manufacturer 

would still enjoy 70 percent of its market share, and so there would 

be enough incentive and competition and pricing to satisfy the entrants contrasted with the generic market where after the first generic comes in taking 25 percent of the branded firm, then you 

would have 8 to 10 generics come in and then they would all cannibalize that 80 percent. So it is a very different competitive situation with the follow-on. 

Mr. DEAL. Plus, also am I correct that the follow-on biologic will 

take a longer period of time for approval even with the exclusivity 

period even non-existent, it would still take longer to get a followon on the market than a traditional chemical-based generic would 

take? 

Ms. HARBOUR. I am not sure about that. I am going to turn to 

Mr. Wroblewski. I think not, but I will let Mr. Wroblewski answer 

that. 

Mr. WROBLEWSKI. The time to bring a follow-on to the market, 

the evidence shows would be about 8 to 10 years. The time it takes 

to bring a generic drug to the market is 3 to 5 years. The one thing 

about market-based pricing, the point that we were—to compliment 


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what Commissioner Harbour just talked about was that when you 

have a patent that allows you to charge, and you are the only one 

on the market and you have developed innovation, that allows you 

to charge a price, any price, a monopoly price, so if the period of 

time in which you enjoyed that monopoly is shortened the ability 

to raise the price, that is what marked-based pricing is all about 

to make up for that. 

Ms. HARBOUR. Mr. Deal, I misunderstood what you had said. I 

thought you meant FDA approval, whether that would take longer, 

and my answer was, no, it would not. But, as Mr. Wroblewski said, 

yes, FOB drugs would take about 8 to 10 years to develop, and they 

would likely cost between $100 million to $250 million as compared 

to small molecule generic drugs, which would take 3 to 5 years to 

develop, and would cost roughly between $1 million to $5 million. 

Mr. DEAL. Thank you. 

Mr. PALLONE. Thank you, Mr. Deal. Chairman Waxman. 

Mr. WAXMAN. Thank you very much, Mr. Chairman. Could you 

just repeat that last point? For biologic drugs it takes 8 to 10 

years? 

Ms. HARBOUR. Yes. Biologic drugs would take 8 to 10 years. Follow-on biologic drugs would take 8 to 10 years to develop, and it 

would likely cost between $100 million to $250 million, contrasted 

with the small molecule generic drugs where product development 

would take approximately 3 to 5 years to develop and would cost 

between $1 million and $5 million. 

Mr. WAXMAN. So it costs more money. 

Ms. HARBOUR. Yes. 

Mr. WAXMAN. And it takes more time to develop these biologic 

drugs. 

Ms. HARBOUR. Yes. 

Mr. WAXMAN. And, therefore, they want to know they are going 

to have their full protection. Mr. Wroblewski. 

Mr. WROBLEWSKI. I just want to make sure that we are talking 

about the follow-on and not the pioneer. 

Mr. WAXMAN. Oh, I see. You are talking about the follow-on. 

Mr. WROBLEWSKI. I just want to make sure. 

Mr. WAXMAN. So if you got a new biologic drug, you got a patent 

and you think the patents are good, that is enough protection, we 

could give an exclusivity for that period of time. Patents, by the 

way, are for 20 years, isn’t that right? 

Mr. WROBLEWSKI. Correct. 

Mr. WAXMAN. When we did the Hatch-Waxman Act, the patents 

were 17 years. We moved the patent period all the way to 20 now. 

And the Hatch-Waxman Act was a trade off. We said that we 

would allow generics to be approved through an abbreviated process in exchange for giving the brand name company additional time 

lost at FDA for the approval time. And that is called the patent 

term restoration. Well, we didn’t know about biologic drugs in the 

mid-1980s, but these drugs get that patent term restoration, don’t 

they? 

Mr. WROBLEWSKI. Yes, they do. 

Mr. WAXMAN. So they now have a longer patent time and they 

get the restoration period for the time spent at FDA. Your conclusion is pretty surprising because what you are saying is that if 


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somebody says they need 12 to 14 years of exclusivity, you don’t 

think they need it because patents, and they have market-based 

pricing available under the current law, which you believe provides 

sufficient incentives for innovation. 

Mr. WROBLEWSKI. It is not only that we believe it, it is what the 

industry has said for years that patents have been so essential to 

their development. 

Mr. WAXMAN. Now you also concluded, and Mr. Deal pointed to 

this, so let us say we say at some period of time there is going to 

be an approval process for a generic follow-on, and that may take 

8 to 10 years, so that is a long period of time once they even start 

to get the generic follow-on to come into competition. But once it 

is approved, it is not the same as a small molecule drug where people know it is the exact same drug and it could be substituted. A 

generic follow-on drug, which is going to take longer to get on the 

market, and they can’t even be considered until the patent period 

is up or the exclusivity period is up, won’t be substitutable. It is 

going to be like another brand name drug competing with a different brand name drug. What will that mean in terms of the loss 

of market to the generic competitor? 

Mr. WROBLEWSKI. One of the aspects of branded drug competition is the substantial first mover advantage that the pioneer has, 

and so what is going to have to happen is when that follow-on 

comes on it is going to have to develop its own marketing and sales 

force to show that its product is actually more safe or more effective or somehow improves safety, convenience, efficacy for treatment of that drug to gain any market share. And that is actually 

a huge benefit for competition. Competition brings not only price 

competition, but it also brings improvements to the products which 

are very, very important, so you have to look at both of them. 

Mr. WAXMAN. But the competition doesn’t start immediately to 

drop that price because they have to convince the doctors and others that this is a follow-on that can serve the same purposes of the 

original drug. 

Mr. WROBLEWSKI. That is correct, and when we have looked at 

market experience in Europe in which they have a bio-similar 

pathway in the 2 markets that we have looked at there are 2 drug 

markets. Both of them, after 3 to 4 years where the bio-similars 

have already been on the market only had about a 15 percent combined market total, so that means the pioneers still retain 85 percent of the market share which is totally different from the generic 

drug model. 

Mr. WAXMAN. Will follow-ons provide—going to make high price 

biotech drugs more affordable and will these follow-ons provide 

other benefits to consumers? 

Mr. WROBLEWSKI. I think the evidence that we have seen shows 

that they will come in at a 10 to 30 percent discount and a 10 to 

30 percent discount on a drug that for a course of treatment annual 

is $50,000 is a substantial savings, and it will then prompt the pioneer to then move forward to further refine and develop and improve its drugs which benefit consumers. 

Mr. WAXMAN. So having an end point and then having competition even if it is not as strong as generics are for small molecule 

drugs does spur innovation? 


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Mr. WROBLEWSKI. Of course it does. Of course it does. 

Mr. WAXMAN. Thank you. Thank you, Mr. Chairman. 

Mr. PALLONE. Thank you, Mr. Chairman. Next, we have the gentlewoman from North Carolina, Ms. Myrick. 

Ms. MYRICK. Thank you, Mr. Chairman. A couple of questions. 

This is just kind of a regional question relative to North Carolina. 

The biotech sector you know is very important in North Carolina 

and in how it plays into our economy. We see a total employment 

impact of over 200,000 jobs because of our rich biotech sector. No 

doubt a well-designed FOBs pathway could also generate additional 

economic growth. If the pathway were designed as the FTC describes, do you foresee any negative economic impact when it comes 

to profitability of innovative biotech companies? 

Ms. HARBOUR. I don’t believe that the report identifies any, and 

as I had said earlier the biotech sector is doing better than a lot 

of other sectors in today’s economy looking at our stock industry. 

Ms. MYRICK. Right. I heard you say that, so you just don’t think 

that there is any—the other thing I wanted to ask was about the 

European Union. You know their system is different than ours is, 

and when you look at the policies that we have and they have, do 

you think that their policies generally translate to the United 

States because we have such a glut of biotech companies here and 

our existing patent system the way it is set up? 

Mr. WROBLEWSKI. The 2 things that we look at in terms of the 

European market, they do things a little bit differently in terms of 

their patent coverage, and they do things differently in determining 

at the European level, they decide what is safe and effective for a 

bio-similar and they are leaving to the states, the members states 

and the countries, to decide what would be interchangeable. That 

is a slightly different structure than we have here in the United 

States. But the commercial aspects in terms of what these large 

multi-national companies are doing can provide some insight—in 

Europe can provide some insights into what they are likely to do 

here in the U.S. 

Ms. MYRICK. One more question. When you talk about the delay 

in the time it takes for the price differential between the FOBs and 

the innovative biologics, it becomes significant because the point of 

entry for these products is different than traditional generic drugs. 

The study says that the price differential would be 10 to 30 percent 

of the original therapy’s price. Do you think that that would put 

pressure on the insurers in large companies, pressure on providers 

to make the time period shorter? 

Mr. WROBLEWSKI. To make the time period shorter? 

Ms. MYRICK. Yes, of bringing them to market. You don’t think 

there is a possibility that can even happen from what you said basically? 

Mr. WROBLEWSKI. Right. 

Ms. MYRICK. I think that is all at this point, Mr. Chairman. 

Thank you. 

Mr. PALLONE. Thank you. Let me mention to everyone that we 

will have 2 votes. One has already been called, but I would like to 

get at least 2 more of our members to ask questions before we go. 

So next is the gentlewoman from Wisconsin, Ms. Baldwin. 


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Ms. BALDWIN. Thank you. Commissioner, the FTC report claims 

that the development time for small molecule and biological drugs 

are roughly equivalent, and I would like to highlight the example 

of Flugen, which is a company that I talked about during my opening remarks. They are currently working on an adjuvant to the 

standard flu vaccine which would allow 10 times as many doses 

from the same stock of vaccine, so basically allows what would be 

usually 1 dose to be used for more vaccines. This adjuvant was patented from the University of Wisconsin-Madison research lab in the 

year 2001, but will likely not make it to clinical trials until the 

year 2011, and then it is predicted to be another 7 years to get to 

market, which leaves only 3 years of patent protection. And so I am 

wondering how do companies like this factor into your analysis? Do 

you think the patent protections are sufficient in an instance like 

this? 

Ms. HARBOUR. Could I just clarify the first part of your question? 

I believe you said something was equivalent. Would you just go 

back to that, please? 

Ms. BALDWIN. Absolutely. My understanding is that the FTC report claims that the development time for small molecule and biologic drugs are roughly equivalent. 

Ms. HARBOUR. They are not. 

Ms. BALDWIN. OK. Maybe you could shine some light on—— 

Mr. WROBLEWSKI. There are 2 things that we are talking about. 

One is if you are looking at a pioneer drug, the first in class, the 

innovator, if you look at a biologic drug or a chemical drug, they 

roughly cost the same amount to develop and it takes the same 

amount of time. If you then look at the follow-ons or the generics, 

the generic is much quicker to come to the market than a followon. Does that make sense? So the pioneers are equivalent. The second in the class, so to speak, take a little bit longer for follow-ons. 

Your question is whether the patent restoration that—the example that you gave is basically they are only going to have 3 years 

left or 4 years left on their patent. They get patent restoration now 

so they would be able to add back that time that was lost in FDA 

approval. That applies to them now. And if that isn’t sufficient because of the long period of—the longer period, so to speak, of testing for FDA approval then the fix would be to fix the restoration 

of the patent, not to then add an additional layer somewhere else, 

but to fix the underlying problem, which is what the patent isn’t 

providing the length of time that was caught up in the FDA approval process. 

Ms. BALDWIN. Let me also ask you a little bit about changes in 

technology that take place over these periods of time. Over the lifetime of a patent for biologics manufacturing technology will surely 

improve making it much easier for companies delivering biosimilars to enter the market. These companies will gain really at 

the innovators significant expense. And isn’t that an argument for 

some period of exclusivity to be sure that innovators will still be 

willing to take the up front risks to develop these incredible medicines? 

Mr. WROBLEWSKI. You know, those technologies that they are 

going to be developing actually would be applicable to the pioneer 

as well, so the pioneer actually can benefit from the increase in 


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technological advancement. For example, if a follow-on develops a 

better manufacturing process, that manufacturing process can be 

then imported or be used by the pioneer as well, and so that competition to improve innovation benefits not only follow-on but can 

benefit the pioneer as well. 

Mr. PALLONE. OK. Mr. Murphy. I am sorry. Mr. Buyer. 

Mr. BUYER. Thank you very much. 

Mr. PALLONE. Before you start, let me just mention he will be the 

last speaker before we break for the votes, and then we will come 

back right after. 

Mr. BUYER. I would like to know who asked you to do this report. 

Who asked you to do this report? 

Ms. HARBOUR. Thank you for that question. Before I answer that, 

there is a lot of commonality in this room although it may not—— 

Mr. BUYER. That is not answering my question. Answer my question. 

Ms. HARBOUR. I did. 

Mr. BUYER. Were you contacted or encouraged by any member of 

the House and Senate or staff—— 

Ms. HARBOUR. May I answer your question, sir? 

Mr. BUYER. Yes. 

Ms. HARBOUR. In 2003, I read the Commission’s IP report. I was 

a new commissioner. I read it, and there was a footnote that talked 

about generic biologics they called it then and how there was a 

great debate and a lot of controversy about this issue and how it 

was keeping potentially life-saving drug products from the American consumer. So as a commissioner, I went to my staff and I said 

this is an issue that is very important to the American people. And 

I know that my staff is very expert in these areas. I said can we 

take a look at this and see if we can add to the debate. That is 

how this issue came to the fore. 

Mr. BUYER. So you did this on your own? 

Ms. HARBOUR. No. It was with the approval of the other commissioners, but I did see this issue back in 2004. 

Mr. BUYER. Do you see yourself as an expert in promoting competition in U.S. markets? 

Ms. HARBOUR. No, I do not. No. I see myself as an expert on the 

American consumer and trying to be a champion of the American 

consumer much as most of Congress is. 

Mr. BUYER. Since you are eager to sit at the table and discuss 

health, would you be equally as eager to turn to your commissioners and ask that the FTC consider studying the effects of the 

proposed public health plan options on competition in the health 

insurance market? 

Ms. HARBOUR. First of all, I was summoned to the table. I am 

not eager to sit here, but I am happy to sit here. 

Mr. BUYER. I am going to just ask you to answer the question 

that I have asked. 

Ms. HARBOUR. Would you repeat it, please? 

Mr. BUYER. Would the FTC consider studying the effects of the 

proposed public health plan options on the competition in our 

health insurance market? 

Ms. HARBOUR. If we are directed to study anything by Congress—— 


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Mr. BUYER. Well, you weren’t directed to do this study and give 

it to us. You did this on your initiative you said with pride. 

Ms. HARBOUR. Yes, and we do a lot of things on our own initiative at the Federal Trade Commission. 

Mr. BUYER. Would you on your own initiative consider the public 

option plan discussed by the President and its impact on competition in the insurance market? 

Ms. HARBOUR. If we were asked to do so we—— 

Mr. BUYER. You are asked to do so. All right? I ask you to do 

so. 

Ms. HARBOUR. But we would have to vote on that and it would 

have to be decided by a majority of the Commission. 

Mr. BUYER. Right. OK. Oh, wonderful. I will even put it in writing to you. I will ask you to do that, and then you can consider 

with the other commissioners. Would that be OK? 

Ms. HARBOUR. Sir, you may do whatever you like and we 

will—— 

Mr. BUYER. Well, you have just done whatever you like, right, on 

your own initiative. Let me just do this. If you are willing to—now 

you are willing to consider the public plan options in the insurance 

markets impact on competition because you are so concerned about 

the consumer. Number 2, I am going to ask you for another report. 

Here in the House, we just passed a tobacco bill. The Senate is 

about to pass a tobacco bill that locks down the tobacco market, as 

a matter of fact, almost eliminates competition because we don’t 

even have harm reduction anymore, and so I am going to ask for 

a second report for you also to consider, the impact of tobacco legislation and competition in the marketplace. I am going to ask you 

for 2 reports, OK? 

Now the other question I have is I noted in a footnote that you 

had sent a letter to Chairman Pallone outlining preliminary views 

on the likely effects of the regulatory approval pathway. That is 

great. That wasn’t shared with any of us. If this had been done 

back in May of 2008, this is a hearing, Mr. Chairman, that should 

have happened some time ago, so I appeal to you that this not be 

our only hearing that we have—— 

Ms. HARBOUR. Sir, I believe that letter is on the public—— 

Mr. BUYER. Ma’am, I am not asking any question of you. 

Ms. HARBOUR. It is in the public record. 

Mr. BUYER. Ma’am, I am not asking any question of you. 

Mr. PALLONE. If you are asking me the question—— 

Ms. HARBOUR. The letter is on the public record. 

Mr. PALLONE. Let me just cover it. Is the gentleman yielding to 

me? 

Mr. BUYER. My point is, this is my personal opinion, this is a 

hearing that we should have had later—at an earlier time, not 

now, and so my appeal to you is, Mr. Chairman, that we bring the 

FDA in so we can look at—— 

Ms. HARBOUR. And CC’ed. 

Mr. BUYER. Pardon? 

Mr. PALLONE. Wait a minute. Let us please—— 

Mr. BUYER. Ma’am, I am not asking you any question. 

Mr. PALLONE. Mr. Buyer, look, it is a little unclear who you are 

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creasingly to the 2 of us that we are not sure. The question is to 

me at this point? 

Mr. BUYER. All right. My appeal is that you bring the FDA in 

so we can get into the efficacy and safety issues. That is my appeal 

to you. 

Mr. PALLONE. OK. 

Mr. BUYER. So I am not asking any questions of this witness. 

Mr. PALLONE. Let me just—if you would yield. Well, we are out 

of time anyway. But let me answer the question. First of all, the 

letter you mentioned, it is my understanding that that letter was 

posted on the web site for the committee and circulated almost a 

year ago, the one that you mentioned that was sent to me. And as 

far as the second question, I have already stated that we are going 

to have additional hearings and this is just the first one so I just 

want to make that clear again. 

Mr. BUYER. All right. I have a unanimous consent request. 

Mr. PALLONE. You have a unanimous consent request? 

Mr. BUYER. Yes. 

Mr. PALLONE. Go ahead. 

Mr. BUYER. I have a letter from the Association of American Universities, which includes the leading research universities, not only 

researchers in Indiana and Purdue, but over 60 in the country, and 

I would ask unanimous consent that the Association of American 

Universities letter be inserted into the record. Obviously, they are 

seeking providing 12 years of data exclusivity, and I don’t believe 

it is very clear from the FTC report that they include the nation’s 

leading academic researchers and what their opinions are. 

Mr. PALLONE. Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. PALLONE. And the committee is going to now recess until we 

have the conclusion of these 2 votes and then we will come right 

back. Thank you. 

[Recess.] 

Mr. PALLONE. The subcommittee will reconvene. Thank you for 

still being here. And we go to the gentlewoman from the Virgin Islands, Mrs. Christensen. 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman, and again thank 

you for holding this hearing and welcome to the commissioner, 

Commissioner Harbour. The report makes several statements to 

support its conclusion that a 12 to 14 data exclusivity period is unnecessary. One statement is that there is no evidence that patents 

claiming a biologic drug product have been designed around more 

frequently than those claiming small molecules. And the other is 

that because there is no evidence about the lack of patentability of 

new biologic products nor that market forces have been insufficient 

to incentivize development the Commission has not recommended 

a specific length for exclusivity period. If there are no bio-similar 

pathways that exist, how could there be any evidence as to how 

patents could be worked around? Isn’t the whole point that in a 

bio-similar world patentability changes because the approval standard has been reduced from sameness to similarity? 

Ms. HARBOUR. Let me just say that in this market we know that 

the follow-on biologic will resemble brand to brand competition. 

And we know that the patents are strong on biologic drugs. Now 


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your question was rather long, so I didn’t get all of it but I am 

going to let Mr. Wroblewski answer what he heard, and then I will 

come back. 

Mr. WROBLEWSKI. OK. Sure. Your question was to the extent 

that if there is no follow-on biologic how can there be—if there is 

no pathway yet how can there be any evidence. What we looked at 

is the existing brand competition because these markets are very 

large, and so there is plenty of opportunity for another branded 

competitor to come into the market, duplicate all the clinical and 

safety efficacy data, get a full new drug, and then compete, but we 

found that the patents have been so strong in so many of these 

markets that it has even kept out a branded competitor from doing 

just that. 

Mrs. CHRISTENSEN. So from creating a similar product that 

comes through a different pathway? 

Mr. WROBLEWSKI. If you create the similar product what you are 

doing is you are saying to the FOB you don’t have to do as much 

clinical testing but you are still going to have to do some in order 

to be approved and you can rely on the FDA’s previous findings 

about the innovator drug that it is safe and effective and you won’t 

have to do as much. But if the patents have been strong to keep 

out the branded competitors they are going to be equally as strong 

to keep out the follow-on competitors who have to be similar. 

Mrs. CHRISTENSEN. I guess you don’t really make a recommendation as to what the period of exclusivity is, but just given the 

trends and the complexity of the drugs, and all of the other factors, 

the length of time that the very specific processes that have to take 

place that may not be able to be duplicated, the amount of investment that has to be made, can you just explain to me again why 

we would not provide for a longer period. It just seems, I mean as 

a physician I know that I would have a lot of difficulty. I would 

have to adjust myself to generics period to begin with because my 

patients, some of them wouldn’t accept them even if I did. But because there may be immune differences in how a person reacts 

immunologically and the medication, why wouldn’t you give these 

complex molecules with all the other factors a longer period of exclusivity? 

Ms. HARBOUR. Let me take a stab at that. We feel that the patent protection and market-based pricing is enough. Why? First of 

all, the rationale for 12 to 14-year branded exclusivity period basically would be to compensate for any perceived failures of the patent system to reward and protect and to incentivize biologic drug 

innovation, but our report has not found any perceived failure. 

Therefore, we found that branded exclusivity was not necessary because the branded biologic manufacturers are likely to enter the 

market and earn substantial revenues even after follow-on entry. 

And the follow-on biologics are unlikely when they do enter the 

market against the pioneer manufacturers, they are unlikely to 

price discount more than 10 to 30 percent. That means that the 

branded pioneer manufacturers are likely to maintain their advantage. They will still retain 70 to 90 percent of their market share 

after the follow-on biologic enters. They are still making very excellent profits and the biologic product has already, as I said, been 

incentivized through patent protection and market-based pricing. 


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Mrs. CHRISTENSEN. Well, my time is up. If there is another 

round, I may come back. 

Mr. PALLONE. Just to know, we are not going to have another 

round but thank you. Mr. Murphy. 

Mr. MURPHY OF PENNSYLVANIA. Thank you, Mr. Chairman. Some 

quick questions here. The comment that you just made about 70 to 

90 percent, they will maintain 70 to 90 percent of their market 

share, and they will likely continue to reap substantial profits. 

What is the basis of that statement? Likely, what does likely 

mean? 

Mr. WROBLEWSKI. The basis of the statement is the experience 

that we have seen so far in Europe in terms of how they have 

priced and then with the limited experience that we have seen with 

the one example with Humatrope here in the U.S. It is a biologic 

drug but happens to be approved under the Federal Food, Drug, 

and Cosmetic Act so it is an exception. So when we looked at those, 

but then it is also based on the Commission conducted a workshop 

in which we had the biotech industry. We had the potential FOB 

competitors. We had the payors, the PBMs, and the—— 

Mr. MURPHY OF PENNSYLVANIA. Did you have the companies that 

actually do the research and development in the room? Did you 

have the companies that actually developed the new drugs in the 

room? 

Mr. WROBLEWSKI. Oh, yes. Oh, yes. 

Mr. MURPHY OF PENNSYLVANIA. And did they say that they 

thought it was maintaining at 70 percent—— 

Mr. WROBLEWSKI. Yes. 

Mr. MURPHY OF PENNSYLVANIA. Did they say maintaining 70 percent market share they could continue to—— 

Mr. PALLONE. I couldn’t even hear some of the comments you 

made. I don’t know if the reporter could. Maybe don’t repeat it now 

but just stay close to that mike. 

Mr. WROBLEWSKI. OK. I am almost swallowing it. 

Mr. MURPHY OF PENNSYLVANIA. I understand that nearly 90 percent of biotech companies have remained unprofitable. In 2008, a 

third of them had less than 6 months cash on hand. They have to 

go out and get venture capital for these things, and if we say to 

the venture capitalists who are investing that we are going to reduce that by several years of return on investment here that to 

have someone come through—I wasn’t in this room when everybody 

met. Let us take out the payors. Let us take out the FOBs who is 

going to benefit from this. Just the companies, they said, yes, it is 

fine with us, cut us down to 5 years and we can make do with this? 

Mr. WROBLEWSKI. No. No. 

Mr. MURPHY OF PENNSYLVANIA. OK. What did they agree to? 

Mr. WROBLEWSKI. They agreed to what the market effect would 

be of FOB entry. 

Mr. MURPHY OF PENNSYLVANIA. They are fine with it? 

Mr. WROBLEWSKI. It was their research that—— 

Mr. MURPHY OF PENNSYLVANIA. Down to what level, down to how 

many years exclusivity? 

Mr. WROBLEWSKI. Say that again. 

Mr. MURPHY OF PENNSYLVANIA. Down to how many years of exclusivity are they fine with? 


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Mr. WROBLEWSKI. What we were trying to do was analyze how 

competition was likely to develop. 

Mr. MURPHY OF PENNSYLVANIA. But down to how many years exclusivity, did they comment on that? 

Mr. WROBLEWSKI. They have strenuously advocated for a 12 to 

14-year period of exclusivity. 

Mr. MURPHY OF PENNSYLVANIA. So they are OK if it stays 12 to 

14 years and to have competition into the market there, is that 

what they said, they can still—— 

Mr. WROBLEWSKI. Say the last piece again. And the—— 

Mr. MURPHY OF PENNSYLVANIA. The 70 to 90 percent of their 

market share but it is at 70 to 90 percent of their market share 

so let FOBs come in, but would that also still maintain some exclusivity for that 12 to 14 years? 

Mr. WROBLEWSKI. What we had tried to do was to see how the 

competition was likely to develop to determine whether—— 

Mr. MURPHY OF PENNSYLVANIA. I only have 2 minutes left. I just 

need an answer. Does that—are they agreeing, yes, we are OK 

with competition if we can keep the 12 to 14-year exclusivity, and 

that allows us to raise enough money in an unprofitable time to do 

research on new drugs? 

Mr. WROBLEWSKI. I don’t think they ever agreed that they would 

be able to keep 70 to 90 percent. It is just what the experience has 

shown that they would—— 

Mr. MURPHY OF PENNSYLVANIA. Well, I am confused because I 

thought you said that they all met together and they told you they 

were supportive. 

Mr. WROBLEWSKI. Everybody predicts that the effect of a followon biologic will be—that they will come in at a 10 to 30 percent 

discount, and if they do that the brand or the pioneer is likely to 

retain 70 to 90 percent of its market share. 

Mr. MURPHY OF PENNSYLVANIA. OK, but I thought you said—— 

Mr. WROBLEWSKI. We looked at what that implication was. 

Mr. MURPHY OF PENNSYLVANIA. I need an answer here. I am 

really not trying to be funny, but I don’t want to dance around this 

because I want to make sure we have plenty of money to continue 

to develop life-saving drugs. That is what I want. Cheap drugs that 

don’t cure anything are worthless. Expensive drugs that no one can 

afford are worthless. So I need to know. You talked about some 

people sat around and they agreed to something. What the heck 

did they agree to, and if they didn’t, don’t tell me they did. Are 

they saying that this 12 to 14-year exclusivity remains, are they 

saying they are OK with competition, are they saying they are OK 

with making it 5-year exclusivity? What specifically did they say in 

3 words or less? I just need an answer quickly. 

Mr. WROBLEWSKI. They agreed that competition would be like a 

branded competitor and we have ways to deal with branded competitors now. 

Mr. MURPHY OF PENNSYLVANIA. Did they comment at all on the 

years of exclusivity or is your report not touching on today? 

Mr. WROBLEWSKI. No. It describes completely that they have put 

forth a model that shows that they need 12 to 14 years. 

Mr. MURPHY OF PENNSYLVANIA. OK. One other thing I want to 

ask real quick. The issue of similarity so a molecule may change 


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its large molecule. A molecule may change. We are not going to require the FDA to do testing on those? 

Mr. WROBLEWSKI. We took it as a given that the FDA would approve a safe and effective product, whatever that required. 

Mr. MURPHY OF PENNSYLVANIA. So the FDA may still require additional testing of some of these drugs? 

Mr. WROBLEWSKI. And that is the reason why it is going to be 

so expensive to bring in an FOB. 

Mr. MURPHY OF PENNSYLVANIA. OK. So just changing a molecule 

on something, I mean you could change one molecule in an H20 

formula and make something that is toxic versus something that 

is necessary so I hope that that is an important part of this whole 

report. If that is something we have discussed more perhaps you 

can elaborate on this for me because it is something you made reference to in writing and also in your testimony here. I really would 

like to know what that means because that is going to be very important to understand how we can have a competitive marketplace 

and also make sure there is sufficient funding in here that we can 

keep moving forward in developing these new drugs. I would be 

grateful for that. The procedure will be to let the chairman know 

and we will go on from there. Thank you so much. 

Mr. PALLONE. Let me mention to you and to the members, and 

obviously as always you will be able to pose questions in writing 

that we would ask you to respond to after the hearing. The gentlewoman from California, Ms. Eshoo. 

Ms. ESHOO. Thank you, Mr. Chairman. The first thing I would 

like to start out with is to ask for unanimous consent to place in 

the record the comprehensive responses to every question raised by 

the subcommittee from the chief scientist of the FDA, Dr. Frank 

Torti, which was peer reviewed, and, second, the exhaustive economic analysis of data exclusivity of biologics by Henry Grabowski, 

whose name has been mentioned several times by several members 

on both sides of the aisle today. He is the director of the Program 

of Pharmaceuticals and Health Economics at Duke University. So 

I would ask that these be placed in the record. 

Mr. PALLONE. Let me just ask, these are the comments by the 

FDA under the Bush Administration, is that what they are? 

Ms. ESHOO. Well, the FDA is the FDA regardless of what Administration it is under. 

Mr. PALLONE. No, no, I just want to make sure because I know 

we have asked—I am only asking because I know that we have 

asked the FDA, the current FDA, too, but these are the ones from 

the previous, right? Let me see them. 

Ms. ESHOO. You know what, Mr. Chairman, I think you know 

what I asked. I am just asking for unanimous consent to place this 

in the record. If people want to read it, they will have access to it. 

If they think it is garbage, they can throw it out. It doesn’t force 

anyone. It is a very simple request. 

Mr. PALLONE. No, no, I agree. I am just trying to verify what it 

is. 

Ms. ESHOO. Read it and then you will see. Is there unanimous 

consent to it? 

Mr. PALLONE. Well, normally I like to know what it is before I 

agree. 


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Ms. ESHOO. I just read it into the record. 

Mr. PALLONE. Tell me again. It is the FDA—— 

Ms. ESHOO. These are the comprehensive responses to the questions that the members of the subcommittee almost 2 years ago before we had the meeting—— 

Mr. PALLONE. Right, but we have also asked them—these are the 

ones from the previous Administration. We have asked them again 

in the current Administration. 

Ms. ESHOO. You don’t agree with what the FDA responded, but 

I still would like that in the record. 

Mr. PALLONE. No, I just want to make sure that they are the 

ones from the previous Administration. That is what we are talking 

about, right? 

Ms. ESHOO. What is the date on it? It is September 18, 2008. 

Mr. PALLONE. OK. 

Ms. ESHOO. So it is just before my candidate for President won. 

Mr. PALLONE. All right. So ordered. 

[The information appears at the conclusion of the hearing.] 

Ms. ESHOO. In trying to read the report, digest it, and then analyze it in the unfair time frame that was established either by the 

FTC or by the committee, I don’t know which it is, there is something that stood out to me, and that is throughout the report, 

throughout your report you base the—you talk about obviously the 

generics that are the result of Hatch-Waxman, which we all celebrate, and this new attempt to use that framework, very broad 

framework, and apply it to biologics. But what you, I think, fail to 

state and then develop in the report is that under Hatch-Waxman 

the compounds, the pharmaceuticals must be identical. That is by 

law. Biologics, bio-similars, think of the 2 parts of that word, will 

be similar. They cannot be identical. I don’t know what scientists 

you brought in to instruct you on this, but I have to say that to 

base your report, as I read it, I think it is deeply flawed because 

you base your outcome and your analysis of bio-similars on the previous regimen and the previous law, which is very different. 

I don’t see where you have taken into consideration the differences between the two which is what makes this case very complex. We have a regulatory framework today in which any new biologic will receive, and I want to move on, because I want to ask 

my questions but that is an observation, any new biologic would receive 20 years of patent protection and no potential for bio-similar 

competition. Innovators and investors are assured that as long as 

their patents are in force, there is no possibility of a competitor 

going to the FDA using the innovator’s safety and efficacy record 

and taking a shortcut to the market to compete against them. 

Now we are proposing to move to a policy in which patents will 

remain in force but competitors will be able to come to market to 

compete against an innovative product without going through a 

full-blown FDA review. As you point out in the report, this will cost 

a bio-similar manufacturer about a tenth of the cost for an innovator or a non bio-similar competitor to bring a product to market. 

Now how can this not possibly change? How can this—because you 

say in your report that investment incentives won’t change. How 

can this not possibly change the investment incentives in bio-technology? If a venture capitalist or a drug company is contemplating 


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a new product for development, won’t this fundamentally alter 

their rise/reward calculation? This has to have an examination. I 

don’t know where you leap frog to. It is almost as if this doesn’t 

exist or that if we don’t talk about, we don’t have to deal with it, 

therefore, it doesn’t exist. 

So I think you need to answer that. And I want to bring out my 

next question as well. Your report states that a 12 to 14-year exclusivity period, this is quote, ‘‘is unnecessary to promote innovation 

by pioneer biologic manufacturers.’’ This position is based on your 

assumptions that patent workarounds will be no easier to accomplish for biologics than they have been for small molecule generic 

drugs. You also state that data exclusivity is only justified for products that are unpatentable, but I see no substantiation at all for 

these positions in your report. That is why I question whether past 

or present information about small molecule generics is a reliable 

predictor for biologics, and that is why I question the basis for your 

assumptions. 

We have absolutely no experience, and I want to repeat that. We 

have absolutely no experience with the similarity standard that 

will be used for biologics for the approval of bio-similars, so how 

can you be sure that a new and untested standard would not facilitate a path for patent workarounds for biologics? How can you be 

sure that the different nature of biologic patents in conjunction 

with the similarity standard would not facilitate patent 

workarounds? How can you be sure? And, you know what, guessing 

in this is not going to be good enough. I would challenge you to ingest what comes out without the kind of scrutiny of the FDA and 

comparing one with the other as if they are the same as if it is apples and pears. It is not. How can you be sure that today’s science 

and the scientific advances in the future would not make it easier 

for bio-similar companies to work around biologic patent claims? 

I think that this is a real chink in the armor of the report or just 

in the report, which I have to tell you at quarter to 1:00 this morning, I thought really suggested a lot of guesswork on the part of 

the FTC. And let me hold something up, and I don’t know if you 

had anyone come in and show you this. This is a regular drug, 

small molecule compound. This is tamoxifen. Look at it. It is all the 

same. This is herceptin. This is herceptin. This is herceptin. If this 

picture doesn’t speak a thousand words where you use the model 

throughout your report based on the generics of the small molecules and apply it to this, I want to tell you something, patients 

are going to be in big trouble in this country. Patients are going 

to be in big trouble in this country. 

And if efficacy of this movement is not taken into consideration, 

God help us. Now there is something else that has gone around in 

the committee for those that are opposed to my viewpoint, and they 

have every right to oppose it. But I want to—and there are other 

members that have touched on this. We cannot take for granted 

those that innovate to pursue the cure of these deadly diseases. 

The FDA is not going to do it, the Energy and Commerce Committee is not going to do it. We have a private sector that does it. 

Yes, there need to be new rules of the road because we want lower 

costs and safe products. But that role cannot be diminished, and, 

I don’t know, I looked at the back of your report. Did you have any 


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people that do the investing in this come and be part of your round 

table? If they were law firms, I didn’t recognize them. 

Mr. PALLONE. Let me just—we are like twice the time so I am 

just going to ask you to—I know you can’t respond to everything 

but—— 

Ms. ESHOO. Well, there was an assertion, Mr. Chairman. 

Mr. PALLONE. But if you could just respond as quickly as you can 

because we need to move on. 

Ms. HARBOUR. I will. There were just a number of assumptions. 

First of all, let me just apologize to you for the lack of time you 

had to read the report. 

Ms. ESHOO. Well, why did that happen to begin with? Were you 

told—how long have you been working on this? 

Ms. HARBOUR. The commissioners received the report at 4:00 on 

Tuesday evening. 

Ms. ESHOO. No, no. How long has the FTC been working on this 

report? 

Mr. WROBLEWSKI. We announced our workshop because we had 

a public hearing in August of last year. 

Ms. ESHOO. How long have you been working on it? 

Mr. WROBLEWSKI. Ten months. 

Ms. ESHOO. Ten months. 

Ms. HARBOUR. And it was finished on Tuesday. 

Ms. ESHOO. And you notified the committee that it was complete 

when? 

Mr. WROBLEWSKI. I notified the—the beginning of last week that 

it would be ready. 

Ms. HARBOUR. And it was ready Tuesday at 4:00. 

Ms. ESHOO. And did the FTC—was it the FTC that refused to 

put the report out to members and only after cajoling that we finally got it and that some of us took it home to read last night? 

Ms. HARBOUR. Let me be really clear. The report was finished 

Tuesday at 4:00 p.m. The commissioners of the Federal Trade Commission voted this Tuesday, this week, at 4:00 p.m. on the report. 

There were embargoed copies that went probably before we even 

voted on it, but it went to the full committee the very next day. 

Ms. ESHOO. You know what, let us get to the—— 

Mr. PALLONE. All right, but we have to move on. 

Ms. ESHOO. I would like you to answer the questions that I 

posed. 

Ms. HARBOUR. OK. There was an assumption that was made, you 

said that the report applied the Hatch-Waxman framework in this 

context. It doesn’t—— 

Ms. ESHOO. Similarities. I am sorry. The identical standard and 

use it and apply it to the similar standard. 

Ms. HARBOUR. The report actually did not say that. In fact, the 

approval pathway for biologics will be very different than the 

Hatch-Waxman approval process, and that is why I started by 

apologizing that you didn’t get a chance to read the full report because it doesn’t say that the approval process is similar. It is not. 

In fact, we are advocating that a Hatch-Waxman approval process 

would not be appropriate in the case of follow-on biologics. And the 

reason we say that is because it mimics brand-to-brand competition. 


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Ms. ESHOO. I am not talking about the approval process. I am 

talking about the investment incentive. You all are the ones that 

are in charge of competition. That is why, I guess, you got involved 

in this whole issue and that is why I think—— 

Mr. PALLONE. If you would just answer that, and then we have 

to move on. I am just going to have to move to the next person. 

Mr. WROBLEWSKI. What we did is we looked at—we did look at 

the investment incentives for the biologics and compared them to 

the investment incentives for a small molecule drug, the HatchWaxman type drug, and the research that we have that is out 

there, and I provided to your staff earlier, was that the actual time 

and the cost to develop a pioneer biologic drug versus a pioneer 

small molecule drug are the same. 

Mr. PALLONE. All right. I have to go. Mrs. Capps is the next for 

questions. 

Mrs. CAPPS. Thank you. Thank you, Honorable Commissioner, 

for being here for this long. One of the reasons, I have 3 different 

questions to ask, one of the reasons that has been given for a 12 

to 14-year exclusivity period is that without such a lengthy period 

start-up biotech companies will not be able to interest venture capitalists in investing in their companies, and without venture capital 

these companies cannot survive. Some believe that this specific 

number of years is very difficult to evaluate. Before Congress 

makes a determination on exclusivity periods, this hearing is because we feel a duty to determine whether there is adequate evidence to support arguments in its favor. First question, did the evidence gathered by the FTC in the course of its investigation support the claims that venture capitalists will no longer invest in 

start-up biotech companies without this 12 to 14 years of exclusivity? 

Mr. WROBLEWSKI. We believe that patent protection will still provide those incentives. Patent protection plus market-based pricing 

will still provide those incentives for venture capitalists to invest 

in start-up biotech ventures. 

Mrs. CAPPS. I know you have mentioned this already. I just 

wanted to get it clearer from my perspective as well. Next question, 

is there evidence that start-up biotech companies will still be able 

to recruit venture capital in during like a 5-year period comparable 

to what the traditional drugs have or the small molecule drugs 

have? 

Mr. WROBLEWSKI. Yes, because patent rights are still going to be 

strong. 

Mrs. CAPPS. Do you have evidence that this is the case? 

Ms. HARBOUR. Well, we have seen if you take a look at the stock 

market in the biotech market the stock prices only went down 15 

percent compared with the general market indices went down 30 

percent. 

Mrs. CAPPS. But you are using that as one method of your valuation? 

Ms. HARBOUR. There are probably more as well, but that is what 

comes to mind. 

Mrs. CAPPS. Are there others? 


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Mr. WROBLEWSKI. The only thing I was going to add was the venture capital that has come into the biotech industry in the past 

quarter has actually been very robust. 

Mrs. CAPPS. And right now there is no 12 to 14-year exclusivity 

because that is what we are debating, so right now they have nothing—pardon? 

Mr. WROBLEWSKI. That is true, there is no 12 to 14-year exclusivity. 

Mrs. CAPPS. There is the same as small molecule. Finally, another kind of tact, the FTC report concludes, as you just mentioned, 

that 12 to 14 years of exclusivity is unnecessary because patents 

and market-based pricing available under current law provides sufficient incentives for innovation. I am particularly interested in one 

of your conclusions that given an excessive period of exclusivity 

may in itself have negative consequences, and that may actually 

harm patients. This is a piece that I would like you to spell out. 

What are some of these negative consequences, particularly how 

the length of exclusivity might decrease the number of medical 

breakthroughs but also the particular—I know many people hang 

on to the hope that something is going to be available to them for 

their own life-saving needs, and so these 2 aspects. Additional 

breakthroughs, follow-on behind some new discovery, often times 

they do, and then the part that relates to the patient’s own survivability. 

Ms. HARBOUR. I would say that the 12 to 14-year exclusivity period could in fact slow the pace of innovation so new—— 

Mrs. CAPPS. So other companies will know they just can’t even 

do anything for that long a time so they won’t try? 

Ms. HARBOUR. That is right, and ultimately that is not good for 

the American consumer because you are not getting new drug products in the market as quickly. 

Mrs. CAPPS. Right. I know especially because there are different 

criteria in other countries that sometimes people see availabilities 

in other places that they can’t make available to themselves here, 

which creates quite a possible tragic situation at least from their 

points of view although to be sure we want to make sure that our 

standards are ones that we set ourselves. Is there any evidence on 

the previous—since I have just a few seconds left, that a long 

length of time of exclusivity would have this sort of chilling effect 

on additional innovations to that particular so upgrading it or making it better or doing something different along the side of it, sometimes different outcomes based on something that is set up in a 

particular—and they are very complex and they will spin off into 

some other kind of breakthrough? 

Mr. WROBLEWSKI. We have seen in other areas that whenever 

the exclusivity ends that that is when the innovation occurs, and 

so to the extent that the follow-on pathway that you are establishing still keeps intact those very robust incentives of patent protection and market-based pricing then you will have the threat of 

competition coming from behind acting it is almost like carrots and 

sticks. With the carrot you have the ability to price at market 

whatever the market will bear for that period of time for your patent. And then you have the competition can come on and hasten 

the development. That is win-win for the consumers. 


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Ms. HARBOUR. And one thing I want to add. The exclusivity is 

really additional protection over and above what the patent system 

provides and the original rationale for the 12 to 14-year branded 

exclusivity period under Hatch-Waxman was to compensate for a 

perceived failure of the patent system. We haven’t perceived that 

failure here with biologics and follow-ons. 

Mrs. CAPPS. Thank you. I yield back. 

Mr. PALLONE. Thank you. The gentleman from Utah, Mr. Matheson. 

Mr. MATHESON. Thank you, Mr. Chairman. In my opening statement, I mentioned that 80 percent of the biotech industry right 

now remain unprofitable. Is that consistent with what you have 

heard as well? 

Mr. WROBLEWSKI. We have seen the same statistics. 

Mr. MATHESON. In the previous round of questions, you were 

asked for evidence about ability to attract capital. You mentioned 

recent stock performance and quarterly investment from venture 

funds. Do you think that short-term window of the last few months 

is really the best evidence you got for telling us that the investment incentives are right because I got to tell you that doesn’t sell 

me. 

Mr. WROBLEWSKI. Sure. We can certainly provide you all the evidence. We would be more than happy to give you the evidence. 

Mr. MATHESON. Mr. Chairman, I think it would be real helpful 

again at future hearings, let us get some folks in the venture capital industry and let us get some other folks in here so we can have 

a broad discussion about what is really going on here because I do 

think we want to make sure when we are setting policy that we 

do set an environment that encourages that private sector investment in these areas. I think that would be a useful tool. I want 

to ask a question. Right now in Europe, you have heard, and a 

number of people said this in their opening statements, that it is 

10 to 11 years of data exclusivity. Have you in your analysis 

thought about how an exclusivity period in the United States 

would be lower than the European model, how that would affect 

U.S. competitiveness in this industry? 

Mr. WROBLEWSKI. The European model is very different for 2 

reasons that we mentioned earlier. One was that the scope of the 

patent system is different in that they have regulated prices in Europe, so with a 10-year period of exclusivity and only the ability to 

charge a regulated price as opposed to a price that the market 

would bear, and if they have developed a monopoly, it is a monopoly price, that that market necessarily isn’t—that model isn’t necessarily as translatable here to the U.S. 

Mr. MATHESON. Have you in your analysis, have you seen where 

a biotech industry is moving away from Europe and coming to the 

United States in previous years? 

Mr. WROBLEWSKI. I think what we saw throughout the entire 

analysis was that biotech in many ways is a global industry, but 

that here in the United States it is locally centered, so because of 

the strong collaborative efforts between universities, between startups that have talent to manage projects that you have a collaboration, and so that is why you have in Wisconsin, you have a biotech 

industry—— 


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Mr. MATHESON. Let me ask you, in your analysis did you look at 

why—in terms of looking why the Europeans set this data exclusivity at 10 to 11 years, you have mentioned your issue about market pricing, did you analyze other reasons why they set that exclusivity period where they did, and in fact was not one of the reasons 

because industries were leaving Europe and coming to this country? 

Mr. WROBLEWSKI. When we spoke with the European regulators 

they explained that their system was kind of a different system because they were incorporating not only biologics but small molecule 

drugs too in that whole system and that it was a different dynamic 

than what I think we are facing here. 

Mr. MATHESON. Let me ask you this question. Obviously, the 

committee is looking at different bills that look at data exclusivity. 

What are the factors you think we ought to be taking into consideration as a committee in terms of how we determine an appropriate 

length of exclusivity? 

Mr. WROBLEWSKI. I think there are a couple of things that we 

should look at, one, to see if there is a failing in the patent system 

because drugs are unpatentable, that is a serious flaw for all drug 

development, and there should be some type of mechanism to recoup and to encourage people or firms to engage in that clinical 

testing. 

Mr. MATHESON. So are you suggesting it is more of a patent reform issue and not data exclusivity, is that what you are saying? 

Mr. WROBLEWSKI. Yes. 

Mr. MURPHY. And you are saying that the fact the biologic industry maybe faces a different set of dynamics than conventional prescription drug industry that this exclusivity issue is not an appropriate tool for us to acknowledge the challenges in the biotech industry? 

Mr. WROBLEWSKI. We didn’t see that the tools that we currently 

used to incentivize innovation, basically patents and the fact that 

you can price up the market somehow would fail and with a biosimilar that wouldn’t have nearly the dramatic market impact that 

a small molecule generic drug would have. 

Mr. MATHESON. If you think that the intent is that we want to 

set up an appropriate opportunity for the private sector to recoup 

its R&D cost to develop one of these, are you telling me data exclusivity is not an appropriate tool for us to be looking at? 

Mr. WROBLEWSKI. I think it is an appropriate tool to look at if 

the other 2 tools which have been wildly successful are broken. 

Mr. MATHESON. And you are suggesting they are broken? 

Mr. WROBLEWSKI. Quite the opposite. I am suggesting that they 

seem very strong. 

Mr. MATHESON. I see my time has expired, Mr. Chairman, but 

I guess I will reiterate what a number of folks have said. I think 

it would be helpful to bring some other folks in before this committee to get some other points of view, and I will yield back my 

time. 

Mr. PALLONE. Thank you. Before I ask Mr. Inslee, I know that 

my colleague from Georgia has a request. 

Mr. DEAL. Yes, Mr. Chairman. I have a unanimous consent request that a report from Alex M. Brill, who is a fellow at the AmerVerDate Mar 15 2010 08:39 Jun 29, 2012 Jkt 73747 PO 00000 Frm 000184 Fmt 06633 Sfmt 06633 E:\HR\OC\73747.XXX 73747

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ican Enterprise Institute, and a report from Lawrence L. Kotlikoff, 

Professor of Economics at Boston University, and a report from the 

ARP Public Policy Institute on biologics, that they be included in 

the record. 

Mr. PALLONE. Without objection, so ordered. 

[The information appears at the conclusion of the record.] 

Mr. PALLONE. Mr. Inslee. 

Mr. INSLEE. Thank you, Mr. Chairman. Thanks for allowing me 

to participate in this very important hearing, and I hope there are 

others on this line. This is a complex area, but there is one conclusion of this report that is so, in my view, fantastically unrelated to 

the realities of the marketplace. I really got to question it. On page 

7 of your executive report, I will read you what it says. It says, 

‘‘Central to each of these exclusivities is a public policy trade-off, 

a restriction on competition is provided in return for the development of a new drug product or new use of an existing product. A 

12 or 14-year exclusivity period departs sharply from this trade-off 

because it does not spur the creation of a new biologic drug or indication. The drug has already been incentivized through patent protection and market-based pricing.’’ 

Now that statement is so fantastically unrelated to reality suggesting that the removal of the exclusivity period will help 

incentivize further investment in new drugs to cure new diseases. 

Right now if a drug company wants to go out there and develop a 

new drug that will cure leukemia, they have an incentive to investment in part because of data exclusivity, and yet you have turned 

that upside down and suggest by removing that data exclusivity 

somehow you will create an additional incentive for investment of 

a new drug. Now a biologically similar drug is not going to cure a 

disease that hasn’t already been dealt with by the original product, 

and I just cannot fathom how you make this argument that removing data protection is going to create greater incentive for investors 

to put money into products that will truly respond to this condition 

in a new way. I just think you have turned reality on its head in 

that regard. So I will give you a chance to respond to that. I can’t 

imagine what it would be but take a shot. 

Ms. HARBOUR. Let me take a shot first. Your question seems to 

presume that the patent system is not strong enough to protect 

patents. Basically, exclusivity is additional protection above and beyond what the patent system provides. 

Mr. INSLEE. But let me just ask you this. Don’t you agree that 

data exclusivity is one of the things that investors take into consideration when they decide to plunk down several million dollars on 

something that may take a decade, that may or may not work? 

Don’t you think that is an incentive for investment in truly new 

drugs that truly treat conditions in a new way, which is the original patent that we are talking about here? Don’t you agree with 

that? 

Ms. HARBOUR. No, only if there is truly a perceived failure with 

the patent system. 

Mr. INSLEE. Well, then you do not have any, and with all due respect, any recognition of the investment climate in the United 

States if you do not recognize this as critical to inspiring investment in these truly new drugs. So let me ask you about that. Did 


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your study of valuing the impact on the investment in new products, truly new products, what will approach these conditions in a 

new way, did you evaluate how that would affect investment in 

these new products, and I mean new. That is not follow-on biologics. Did you? 

Mr. WROBLEWSKI. We did not evaluate that in particular, and I 

will tell you why. It is because patent protection has been very, 

very strong. We have suggested though in the executive summary 

that one way to—— 

Mr. INSLEE. I have got limited time. I think if you would answer 

my question, I would appreciate it, but the point I want to make 

is you assumed for purposes of this study that there is no impact. 

That is an assumption we can’t make because if you make that assumption and it is wrong, which I believe it is wholeheartedly 

wrong, you will cut off the development of new drugs because investments will not be made in them. So let me ask you a further 

question. Madam Commissioner, you told us you consider yourself 

an expert on consumers. I will give you a hypothetical consumer. 

Let us take parents of a 10-year old kid with leukemia, and we are 

now evaluating risks when we consider this legislation. One of the 

risks is that we would continue data exclusivity and the parents 

might have a 10 to 30 percent increased cost of a drug that might 

cure leukemia. Let us assume that there is one right now. The 

other risk is that a drug would never be created to cure leukemia 

because by removing data exclusivity the investment never gets 

made to provide that life-saving drug. As an expert in consumer behavior, what do you think is more important in the bigger risk to 

those parents of that kid? 

Ms. HARBOUR. First of all, if I said I was an expert on consumers, I misspoke but let me—— 

Mr. INSLEE. I think that was the direct quote I could find. 

Ms. HARBOUR. I am an expert on protecting the American—— 

Mr. INSLEE. OK. As an expert in protecting the consumer, what 

do you think would be a greater risk in the minds of the parents 

of that child, the risk that they would have a 10 to 30 percent higher cost for the drug or the risk that this drug that could cure their 

child would never be created? 

Ms. HARBOUR. You are assuming that data exclusivity is the only 

way that one would invest in a drug, and that is what I am pushing back against. I don’t think that assumption is correct. There 

are exceptions though where if you have a small patient population 

or if you are bringing drugs on the Orphan Drug Act where exclusivity would be necessary because there is a perceived market 

value, in that circumstance exclusivity would be absolutely appropriate. 

Mr. INSLEE. And the unfortunate limitation of your study, according to what was just testified—— 

Mr. PALLONE. I just have to ask the gentleman—— 

Mr. INSLEE. Thank you, Mr. Chair. I appreciate your cooperation. 

Mr. PALLONE. OK. The gentleman from Texas, Mr. Burgess. 

Mr. BURGESS. Thank you, Mr. Chairman. Let me just follow 

along that discussion that you were just having. Now within the 

Federal Trade Commission, have you constructed a matrix that will 

give you a cost benefit analysis, some of the newer compounds, for 


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example, that inhibit some small blood vessel growth that may be 

used in treating more advanced cancers? Do you look at the number of hospital days that might be saved by using one of these advanced biologics and considering the cost? Yes, they are expensive 

but the disease that they are treating also has expensive consequences associated with it, so that if we avoid a surgery, if we 

avoid a week in the hospital, there are additional savings, not just 

the base line of the drug but there are other things to consider. So 

is there a matrix or a simulation or program that you use to help 

make those evaluations or is this simply data that is derived from 

the price tag on the bottle or box that the drug comes in? 

Ms. HARBOUR. Those sort of questions sound like they are within 

the expertise of the FDA. We are looking at the—— 

Mr. BURGESS. I am so glad you brought that up because Mr. 

Chairman, we should be having this discussion with the FDA. 

Ms. HARBOUR. And perhaps you will. We are your beginning act 

here, and we are talking about the competitive consequences of this 

sort of follow on. I believe there will be more hearings and discussions on these issues. 

Mr. BURGESS. Now you and the FDA, are you aligned on your 

definition of things like bio-similar and bio-generic? Do you mean 

the same thing when you say those terms? 

Mr. WROBLEWSKI. Yes. 

Mr. BURGESS. It seems like the FDA has hinted that it might be 

otherwise, but you feel that currently there is a scientific basis for 

determining interchangeability of biologics from different and unrelated manufacturers? 

Mr. WROBLEWSKI. What we tried to do was to say if there is an 

abbreviated pathway where the follow-on does not have to duplicate findings of safety and effectiveness because it can rely on the 

FDA’s approval of the pioneer drug if that is allowed. 

Mr. BURGESS. That is such a crucial question because the safety 

question can be very, very difficult to answer. And again just as an 

aside a week ago I was visiting the FDA and Dr. Hamberg and getting a tour with her through the new facility that they are occupying out there. One of the researchers just passing in the halls 

said what a difficult time they were having because of the viruses 

that might infect the cell cultures that are going to create these 

monoclonal antibodies that might be useful in the treatment of prevention of Alzheimer’s in the future. Well, that is a pretty important arm or branch of that research. I don’t know that he knows 

or would be interested if he could tell us that is this something 

that is so standard and so settled that you could do this in Dallas 

as well as Denver as well as Bejing and get the same result. 

Ms. HARBOUR. That is very important, and that certainly would 

be for the FDA, not the FTC, to determine the safety and efficacy 

of these follow-on biologics. 

Mr. BURGESS. Again, we are hitting on a recurrent theme, Mr. 

Chairman. We need to have a hearing that involves the FDA and 

many of us have been asking for that for some time. Again, I will 

just emphasize that I have not aligned myself with either of the 2 

bills that are out there. I am really in an information gathering 

mode and safety had to be paramount for a doctor that picks up 

the pen and writes the prescription and rips it off and puts it in 


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the patient’s hand and counsels them as to the risks and benefits. 

We have got to be able to provide them the best data. And it isn’t 

always just the price tag on the box or the bottle that the medication is going to be delivered in. 

What about, because this would come up all the time when I was 

a doctor, and I was in practice for years. There were some classes 

of medicines, and these were not biologics, these were just regular 

things, but there was some class of medicines there you just really 

didn’t want to make a change and you didn’t want a generic to be 

substituted and some of those things might be some of the cardiac 

drugs, certainly some of the diuretics that treat congestive heart 

disease, and in my practice estrogens from different manufacturers 

actually seemed to have a different biologic behavior. And I don’t 

know whether it was the bio availability or the vehicle or what it 

was, but how are we going to address that? A doctor has got a patient who is on a very stable regimen, a patient with a serious and 

significant disease, and now a new bio-similar becomes available, 

how are we going to govern that because in the generic world it became harder and harder for me to control that, and often times I 

would have to pick up the phone and call 1–800 California and stay 

on hold for a long time to get my point across. 

Mr. WROBLEWSKI. We couldn’t agree with you more that those 

types of switching are going to be very difficult to do in the biosimilar environment, and that is one of the foundations that drew 

our conclusions that when a follow-on comes on to the market that 

its market impact is going to be substantially different than a generic drug, the market impact that a generic drug has. 

Mr. BURGESS. Under the Waxman-Hatch, whatever it was, we 

lost the ability to—the provider, the doctor, lost the ability to control that, and again you had to really intervene on your patient’s 

behalf if you didn’t want to have a substitution. 

Mr. WROBLEWSKI. And there is no similar type mechanism in—— 

Mr. BURGESS. Well, I think we heard that discussed this morning 

that there would have to be ways of directing this behavior because 

you couldn’t always trust doctors to do the right thing, imagine 

that. Just one last point I will make. We heard the heparin tragedy 

a year ago in this very hearing room. The fact that often times the 

act of pharmaceutical ingredient, we only manufacture the compounds in this country but actually the active pharmaceutical ingredient may come from overseas, and the ability of the FDA to 

monitor those manufacturing facilities that are overseas, and again 

we saw a tragedy with heparin which is not a complex molecule. 

It is a little bit more complex than aspirin but it would not fall into 

this category. And we saw what happened with the intrusion of a 

foreign substance into that active pharmaceutical ingredient. It 

just seems to me that this manufacturing process which is fraught 

with much more peril, you got to be much more precise. You don’t 

just line up the amino acids and say, there, I have made the protein. It is the folding, the unfolding, the sulphide bonza, hydrogen 

bonza, all those things are going to be critical to the biologic action 

of that product, and, again, all of which can be affected by the humidity, the atmospheric pressure, and goodness knows what else. 

We have an obligation to protect—you say you are the advocate 

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ty of that consumer, which is both the physician and the patient 

in that scenario. 

Ms. HARBOUR. And as an advocate for consumers, I think it is 

a good thing to discuss all of these issues. We are here discussing 

the competitive implications. Obviously, the safety implications are 

paramount. You can’t pass go if there aren’t safety implications. 

There needs to be a hearing on this potentially as well, but here 

we can’t opine on those. We don’t have the expertise to opine on 

the safety. The FDA would have to do that. 

Mr. BURGESS. Thank you for your testimony. Mr. Chairman, did 

you get that, we need to have a hearing with the FDA? 

Mr. PALLONE. I have repeatedly said that we are having more 

hearings so no one is disagreeing with that notion, and I think it 

is pretty obvious that we have a lot of disagreements here and we 

need further hearings. Let me just thank both of you for being 

here. This has not been easy for you, but I appreciate your bearing 

with us. And, as I mentioned before, we will undoubtedly have 

members asking in writing for you to respond to questions. Normally that is about 10 days, and the clerk will notify you within 

the next 10 days of any written questions that the members would 

have. But I cannot stress enough that I think that this report was 

really informative for me and the other members, and appreciate 

your bearing with us today. Thank you very much. And without 

further adieu, this subcommittee hearing is adjourned. 

[Whereupon, at 1:45 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 


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