Data Exclusivity for Medical Devices

Data exclusivity for drugs and biological products gets all the attention.  (In fact, recently I read a law review article asserting that medical devices are not entitled to any sort of exclusivity period after approval.  But this is wrong!)  It is apparently not as well known, but sponsors of premarket approval applications (PMAs) enjoy six years of data exclusivity.  Folks interested in FDA and innovation policy should know about the device scheme because it has a unique history (with a novel and clever – though unworkable – approach in place for seven years) and because at a high level it is still analogous to drug and biologic exclusivity even though the regulatory paradigms are different.

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