It is an interesting concept but a dangerous one. It cuts at the heart of the conflict between the USPTO, the FDA, NIHS and "big pharma". Drug companies sink mil/billions into developing drugs with the incentive of revenue guarantees from drug patents. However, most big "breakthrough" drugs are heavily funded by the NIHS (other government grants) and therefore... tax payer money. The FDA, instituted to protect the public, is heavily backlogged and drags their feet approving a new drug. Usually, by the time the FDA approves a drug, the patent holder has limited amount of time to make up development costs before the market is flooded with generics.

The real question is why any of this exists in the first place? Does the patent system really incentivise the creation of technology? Does the FDA really protect the public? How should this effect drugs that the government and tax payers actually pay (if in part) to develop?

With Tamiflu, used to treat H1N1 and other serious flu, there is a company in India that produces a "generic" and could fill the gap in demand. Their generic version has been cleared by the WHO, but due to US patents, cannot be distributed to the US or its trade partners. The same holds true to many "life-saving" drugs, such as HIV/AIDS cocktails.

I am not saying that so called "big pharma" is evil or that there is some social justice demanded, I do not think that to be the case, just that the whole system in the US and other countries suffers from serious fundamental issues. To justify suing someone, there must be a claim of wrong doing on account of a specific party. Who is really responsible for the shortage of N1H1 vaccine? I would say we all are...