Last month, the Senate unanimously passed the Affordable Prescriptions for Patients Act, a bill aimed at curbing patent abuse.
Unfortunately, the bill, which was already relatively narrow in its scope, was heavily watered down by pharmaceutical industry meddling. When initially introduced, the bill aimed to curb patent abuse by limiting the number of certain types of patents that drugmakers can assert in litigation and making it easier for the FTC to rein in product hopping.
In the current version of the bill, the limits on the number of certain types of patents that can be asserted in litigation now only apply to biologics, not to small molecule drugs, and the language restricting product hopping has been removed.
Every step we take towards transforming the patent system to better serve the public good, no matter how small, deserves acknowledgement. However, for those of us who are part of the movement to end patent abuse, the Affordable Prescriptions for Patients Act’s passage holds a few key lessons.
First, that a patent abuse bill unanimously passed the Senate is a testament to the tireless efforts of patients and drug pricing advocates. Patent abuse is at the center of U.S. drug pricing conversations and policymakers across the political spectrum are beginning to scrutinize it.
Second, the success of the pharmaceutical industry’s lobbying should serve as a cautionary tale that the industry will fight tooth and nail to prevent even the smallest narrowing of the loopholes they exploit in our patent system.
Finally, our movement must take stock and ask ourselves some deeper questions: How is it that, with an industry that has accumulated so much power, we applaud these small wins? Have we become so used to losing that any win is OK? Are our politicians operating with the same mindset? I realize the current reality of politics, but we need to create a new standard for what we call a win.
Incremental progress is important, but we must continue to set deeper structural transformations to the patent system as our end goal and put all our weight behind reaching it.
Onwards,
Tahir
RELEVANT NEWS
In May, the USPTO proposed new rules that would require a patent owner to agree that where a key patent is invalidated in court or at the Patent Trial and Appeal Board (PTAB), any subsequent patent that is linked through what is known as a terminal disclaimer would be unenforceable in litigation. In our public comment, we commended the agency for proposing these rules, which could help curb patent thickets and promote genuine invention and competition. However, the terminal disclaimer practice is outdated. While USPTO’s proposed rules could be helpful, we urge the agency and Congress to eliminate the terminal disclaimer practice altogether.
Bloomberg Law documented how biotech start-up Terran Biosciences Inc. is “borrowing a page from Big Pharma’s playbook” by adopting its patenting tricks. In the article, I explain how the adoption of this exploitative model is adding more pollution to an already compromised patent system.
For more background on the Affordable Prescriptions for Patients Act, read Ed Silverman’s thorough overview of the legislation in STAT.
SOMETHING HOPEFUL
We spoke to Steve Knievel, an advocate, researcher and organizer with Public Citizen about the Affordable Prescriptions for Patients Act and the Bill to Address Patent Thickets. Steve emphasized the importance of passing both bills but cautioned against overstating their impact. “They should be passed immediately,” he said, “but we shouldn’t overstate how far they go and how complete they are in addressing the problem of patent thickets. We need to prevent these anticompetitive patents from being inappropriately granted at all.” Watch the video here.