[refurb]

They do that now (to an extent).

If you get your drug approved by the FDA, you get 5 years of market exclusivity (12 years of it's a biologic). However, it has to be determined by the FDA to be a NCE (new chemical entity). Right now, a company called Amarin is trying to get a drug approved that has no patent and they are hope to get the FDA to recognize their drug as an NCE.

If it for a very rare disease (orphan drug), you get 7 years of exclusivity (still 12 if it's a biologic).

During that time, no other application for the same NCE and indication will be approved by the FDA, giving the first applicant de facto market exclusivity in lieu of a actual patent.

[cwp]

That's awesome. In my mind, that lets a lot of air out of the pharmaceutical argument for patents.