Mar 2024: Why Current Legislation to Prevent Patent Thickets Are a Good Start — But Not Enough

4 Apr 2024

As pressure to address drugmakers’ abuse of the patent system continues to grow, there has been a flurry of proposed legislation that would take on aspects of the patent problem. During a recent Senate HELP hearing on drug prices, Senator Cassidy (R-LA) asked me about one bill in particular: the Affordable Prescriptions for Patients Act introduced by Senators Cornyn (R-TX) and Blumenthal (D-CT).

When Sen. Cassidy asked if the bill would effectively address patent thickets, I said “no.” That may have surprised some folks.

I explain my point of view at length in a new article on Medium. Here’s a brief summary for those looking for a quick overview:

The bill sets out to “prevent bad actors in the pharmaceutical industry from deliberately abusing the patent system” by prohibiting product hopping and imposing some limits on the number of biologic patents of a particular type that can be asserted in patent litigation. Establishing some limits on the number of patents drugmakers can assert in litigation is a small, helpful step towards managing patent thickets. However, I don’t believe in falsely advertising partial fixes as comprehensive solutions for a much larger problem. Congress should pass this bill as a step forward, but we must recognize that it will not, as advertised, prevent patent thickets.

When you pair this bill with Senator Welch’s Bill To Address Patent Thickets and the continued pressure from the FTC to rein in Orange Book abuse, the picture becomes even more encouraging — but not yet complete.

The great news: legislators are grasping the severity of the patent problem and understanding that we need policy to fix it. They know there’s no ending the drug pricing crisis without ending patent abuse.

The solution needs to address the root of the problem: to actually prevent patent thickets, we must raise the bar for what should be considered an invention deserved of being granted a patent while also increasing transparency and accountability throughout the entire patent system.


Relevant News Rundown

WHO member states are in the midst of hashing out a Pandemic Accord – an agreement between nations that sets out an actionable plan for pandemic prevention, preparedness, and response. Unsurprisingly, but tragically, the deadly neo-colonial and neoliberal power dynamics that doomed COVID-19 vaccine distribution are rearing their ugly head here.

Twelve U.S. Senators and Members of Congress sent a letter to President Biden demanding action to address vaccine inequity for the next pandemic. It builds on the work I-MAK and the entire access-to-medicines movement did during the fight for a true TRIPS waiver and calls for creating a real mechanism to ensure that public health comes before private profits. If the millions of unnecessary Covid deaths didn’t force us to learn our lesson about monopolising life-saving medicines, what will?

Useful Reading

While the bills I mentioned above make important progress towards addressing the drug patent problem, there are also currently bills in discussion that would serve to make patent abuse worse and grant more monopoly power to drugmakers and corporations in other sectors. This breakdown from Alex Moss of the Public Interest Patent Law Institute and Timi Iwayemi of the Revolving Door Project does a great job of explaining just how dangerous Senator Coons (D-DE) and Senator Tillis’s (R-NC) PERA and PREVAIL acts are. Another example of bills deceptively advertising their intended purpose, in this case with much harsher consequences for the public.

GLP-1 weight loss drugs loom as the next category of overpatented, unaffordable blockbuster drugs. This recent feature from Oprah Daily shows that as people are starting to express their concern about the price of these drugs they are connecting it to drugmakers’ habitual abuse of the patent system.

The EU-based biotech media outlet Labiotech has been breaking down patent thickets and cited our research in its interrogation of AbbVie’s future prospects amidst a “fall in revenues owing to expiring patents.” This perspective is part of an ever-growing body of work that is reliant on our comprehensive patent data that otherwise would not be available publicly.

Something Hopeful

I recently attended a convening “What & How We Own: The Politics of Change” hosted by RadicalxChange, Dark Matter Labs, and a Stanford University research team to discuss how we build a new paradigm of property and ownership in the 21st century. I thoroughly enjoyed the robust conversations that helped connect our work to bigger philosophical ideas about our current extractive property and economic systems when it comes to land, climate, labor, and intellectual property.

A main takeaway: across industries and work areas there’s a growing consensus that, although they dominate our global economy, our current property systems are legal fiction. These systems only have as much power as we give them. It is not an immutable natural order, but something that is shaped by people with specific interests and it can (and must) be reshaped.

Over the coming months, I hope to share some of my thoughts coming out of this convening and potential collaborations.

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