Jun 2023: Defending the Inflation Reduction Act with Patent Data

29 Jun 2023

In an unsurprising move, the pharmaceutical industry and its allies are suing the government over the Inflation Reduction Act. It’s a desperate tactic, coming on the heels of the $375 million they spent on anti-IRA lobbying, to try and stop the U.S. from joining other developed countries by allowing the federal government to negotiate prices for the most high-expenditure drugs covered under Medicare.

I say unsurprisingly, because any time the government attempts to rein in the pharmaceutical industry’s excesses, the industry follows a predictable pattern — using the Constitution as cover, even though they’re more than happy to receive government granted patent monopolies. It also mirrors another shamefully litigious moment in the industry’s history, when 42 companies sued Nelson Mandela to block the South African government’s effort to increase accessibility of HIV treatments.

The industry and its allies’ claims of being taken advantage of by the government are even more ironic in light of this new report from the U.S Senate Health, Education, Labor and Pensions Committee. The report highlights the federal government’s substantial investments in drug development and the fundamental role played by our public tax dollars. These findings further emphasize the point we at I-MAK have made time and time again, that “innovation” should be seen as a euphemism for the reality: overpatenting, and the commercialization of inventions rather than the creation of the actual inventions themselves.

These attacks need to be taken seriously. After all, billions of dollars in savings, a step towards curbing drugmakers’ abuse of our patent system, and, most importantly, millions of seniors’ access to the drugs they need are on the line.

But it’s important to acknowledge both the inanity of the industry’s tactics and that their desperation is a direct response to some of our movement’s biggest wins against the drug pricing crisis.


What we’re doing

Access to comprehensive drug patent data will be an essential part of defending and implementing the Inflation Reduction Act’s historic Medicare drug pricing negotiation provision. We were pleased to have provided data and analysis for Protect Our Care’s new report highlighting the impact these negotiations will have on lowering drug prices & curbing patent abuse.

As we’ve discussed in previous newsletters, the USPTO’s Patent Trial and Appeal Board could be an important tool for fighting high drug prices. However, the PTO’s newly proposed rules would undermine that potential by making it far more difficult to challenge weak patents. In the public comment we submitted, which you can read in full here, I explained how the proposed rules must be changed to ensure the patent system is not manipulated to block competition as per President Biden’s Executive Order.

The American Prospect recently published a comprehensive overview of America’s drug patent problem that cited our 2022 Overpatented, Overpriced report. After running through recent promising drug pricing legislation, the piece concludes with a final rallying cry: “Patent reform is the obvious next step.”

Relevant news rundown

Not content with the additional protection that the USPTO wants to give patent owners through its proposed new PTAB rules, Senators Coons and Tillis have introduced two bills that would not only make it harder to scrutinize pharmaceutical companies’ patents but also give them new opportunities to amass even more. The Prevail Act seeks to further insulate pharmaceutical companies from having their patents challenged at the PTAB, while the Patent Eligibility Restoration Act would expand the type of subject matter that can be patented. If passed, these bills will exacerbate our overpatenting problem.

For the Atlantic, Sandeep Vaheesan wrote an excellent piece explaining how pay-for-delay – one of pharma’s favorite patent tricks – is a clear violation of antitrust law. As he explains, “Pay for delay is maddening—the sort of thing that makes people say ‘There ought to be a law against this.’ What’s truly maddening…is that there already is a law against pay-for-delay deals: antitrust.”

Looking forward

I was heartened to be in the company of an energized group of colleagues at the recent EconCon, a convening of wonks, organizers, advocates, and policymakers focused on building a fairer economy. There were panels on the importance of building public power, eradicating austerity, implementing the Inflation Reduction Act, and a world beyond neoliberalism.

It was equal parts aspirational and practical, the exact type of meeting of minds we need to propel us down the road towards a better, fairer future.

Partner with us now to build
a more just and equitable
medicine system for all.