This commentary addresses the "product hopping" analysis in Professor Carrier's case study of Cephalon's Provigil and Nuvigil sleep disorder drugs. Professor Carrier suggests that Cephalon introduced Nuvigil near the end of Provigil's patent term to sidestep generic competition. This piece examines several points raised by that paper, including the fact that Cephalon did not withdraw Provigil from the market when it introduced Nuvigil, that the advantages of Nuvigil over Provigil are not well established, and the suggestion that courts should get into the business of scrutinizing "product hopping." In addition, it is yet uncertain whether consumers will prefer Nuvigil to generic Provigil, and courts should not take it upon themselves to make the decision in the place of consumers.
Daniel A. Crane,
Provigil: A Commentary,
3 Hastings Sci. & Tech. L.J. 453
Available at: https://repository.uchastings.edu/hastings_science_technology_law_journal/vol3/iss2/3