The problem is that there too many potential culprits in cases where generics use off label prescriptions to infringe.
This makes it difficult for an innovating company to pursue a generic company for infringement on their patented indication
The parties to blame may include:
-the generic company -the Doc -the patient -the pharmacy - the pharmacy benefit plan -the insurance company -the government
A generic company may invest very little cash, and even though their infringing product may be inferior to the branded product... they can still stand to make lucrative profits.
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