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25 September 2019
In a recent decision,(1) the Federal Supreme Court held that although certain provisions of the Health Insurance Act (SR 832.10) and the Health Insurance Ordinance (SR 832.102) are based on patent protection (or expiration as per Article 65e of the Health Insurance Ordinance), the Health Insurance Ordinance specifies no pricing rules for generics if the original's exclusivity is only partially lost.
The court clarified that protected indications of a multi-indication pharmaceutical, of which some indications have lost exclusivity, cannot be exchanged by a generic.
With regard to the delta between an original with partial loss of exclusivity and generics marketed for non-protected indications, the court decided that the Federal Council would have to specify pricing rules for this specific constellation. Without such specification, the general rule that the (whole) sales volume of the original defines the delta applies (see Article 65c of the Health Insurance Ordinance).
For further information on this topic please contact Andreas Wildi at Walder Wyss by telephone (+41 58 658 20 00) or email (firstname.lastname@example.org). The Walder Wyss website can be accessed at www.walderwyss.com.
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