Antitrust Lawyer Blog Commentary on Current Developments

The STRONGER Patents Act is Bad for Patients

The STRONGER Patents Act is proposed legislation that if passed would ultimately lead to higher drug prices for patients while lining the pockets of the big pharmaceutical companies.

American patients are well-acquainted with the high prices Big Pharma charges for prescription drugs. Families across the country are struggling to afford life-saving and maintaining medication they desperately need while the big pharmaceutical companies reap the rewards.  In fact, prescription drug prices here in the United States are so high that Americans pay significantly more than any other high-income nation for the exact same drugs.

A significant reason that drug prices are so high is that Big Pharma has established effective monopolies by preventing and delaying generic drug competition. Big Pharma has many techniques they use to prevent and delay competition and keep drug prices high, but their most pervasive and damaging tool is the abuse of America’s patent system.

Patents grant a monopoly for a limited amount of time, after which competition is allowed. This balances a strong incentive to innovate against the public interest in competition that makes new technology more accessible and affordable. Unfortunately, Big Pharma uses techniques called patent thickening and product hopping to game the patent system, effectively ensuring that their drug monopolies extend in perpetuity and affordable alternatives never enter the market.  These monopolies have allowed Big Pharma to consistently raise prices to exorbitant levels all at the expense of patients.

Abuse of the patent system can be costly for Americans, especially vulnerable patient populations who must take certain medications. For example, AbbVie filed over 240 patent applications for a single drug, Humira, and received over 110 granted patents. This patent thicket allowed AbbVie to keep biosimilars out of the market until 2023, when other countries have had access to more affordable competing versions since 2018. Cutting through these thickets will allow generic drug competition sooner, saving patients and the healthcare system billions of dollars.  By making it harder to cut through Big Pharma’s patent thickets, the STRONGER Patents Act will keep prescription drug prices high at a time when Congress desperately needs to take actions to cut drug prices for American patients and taxpayers.

The STRONGER Patents Act of 2019 would make matters worse for consumers.  The STRONGER Patents Act would strongly limit the ability of the Patent Office to review and screen for bad and invalid patents. Under current law, the public can appeal to the patent office to review bad patents, which is an incredibly important tool as Big Pharma routinely attempts to expand their monopolies through bombarding the patent office with excessive applications.  Today, interested parties can appeal to the Patent Office to review bad patents through inter partes review (IPR), which allows interested parties facing infringement allegations to challenge bad patents in front of administrative judges with technical expertise. This process is much cheaper and faster than trials in federal court.

The STRONGER Patents Act would undermine this process by setting much higher standards for invalidating patents and raising the cost of invalidating them. The legislation also ends public participation in this important process.  At a time when patent abuse is a serious and growing problem, this is the wrong approach. Consumers will literally pay the price.  Prescription drugs will be more expensive, innovation will be reduced, and there will be less competition.

At a time when too many Americans’ are struggling with rising drug costs, Congress should not be concerned about Big Pharma’s need to strengthen the patent laws rather Congress should be focused on legislation that reins in Big Pharma, ends their rampant patent abuse and leads to lower prices for life saving and maintaining prescription drugs and treatments.

Andre Barlow
(202) 589-1838
abarlow@dbmlawgroup.com