Congress members are in their home districts gearing up for Election Day. When they return to Capitol Hill in mid-November, theyƵll have to decide about legislation that could lead to either lower or higher prescription drug prices. Will they help millions of American patients, or will they pay back the largesse of drug companies that contributed to their campaigns?
High drug prices are top-of-mind for many Americans. More than four out of five said drug prices are Ƶunreasonable,Ƶ according to a Kaiser poll. ItƵs why Congress granted Medicare the power to negotiate lower drug prices for 10 of the most expensive, commonly prescribed medications. That should only be a first step. Both parties have expressed increased interest in tackling high prescription drug costs by reforming the patent system, which has a huge impact on industry competition. However, two bills could make it even harder to have a competitive prescription drug marketplace.
When a drug company creates and patents a new drug, it earns the exclusive right to sell that drug at whatever price it chooses for 20 years. On a continuing basis, brand drug companies register as many patents as they can on their medications. Drug companies commonly use these overlapping patents, otherwise known as Ƶpatent thickets,Ƶ to legally prevent generic and biosimilar competitors from making it to pharmacy shelves. Biologic drugs are used for treatments including vaccines or certain cancer therapies. A generic version of a biologic drug is called a biosimilar.
When representatives return after Election Day, the House should pass the bipartisan Affordable Prescriptions for Patients Act, which the Senate has already approved. The bill limits the number of certain patents a pharmaceutical company can assert in court to protect its monopoly pricing.
Fewer patents lower cost barriers for a biosimilar company to challenge a patent thicket, meaning weƵll likely see more, lower-priced, biosimilar drugs on pharmacy shelves sooner. The FDA found that even one generic competitor brings down the average manufacturerƵs price by up to 39%. With four generic competitors, prices drop 79% from the brand drug price before competition.
YouƵd think that every Congress member would support passing measures to lower drug prices for their constituents. Yet, some senators are trying to advance two bills that will make it easier for drug companies to build up patent thickets that block competition. ItƵs likely the Senate Judiciary Committee will push these two bills to a floor vote after the election.
We oppose the Patent Eligibility Restoration Act, which would allow patents on natural phenomena, laws of nature and abstract ideas. ThatƵs absurd. Those things donƵt belong to any one person or business. This dramatic change could have devastating effects on drug pricing by expanding the universe of items that can have a patent, making it easier than ever for drug companies to build patent thickets. Patents Ƶ and the monopoly pricing that goes with them Ƶ should be reserved for truly novel human innovation as patent law originally intended.
The other bill we oppose would make it harder than ever to strike down a patent that should never have been granted in the first place. Aptly named the PREVAIL Act because it would help companies defeat challenges to their patents by eliminating the publicƵs ability to challenge wrongly granted patents. Ƶ concerned citizens,we deserve an opportunity to question the U.S. Patent and Trademark Office about its decisions to grant a patent. Businesses shouldnƵt be the only entities with that right. PREVAIL takes away the publicƵs right to bring evidence that the patent is invalid. That would silence the patientƵs voice when it comes to improper drug patents.
These are complex issues, and we donƵt expect everyone in Congress to be an expert on them. However, we do expect them to protect their constituentsƵ physical, mental and financial health. With that in mind, we applaud CongressƵ desire to keep finding ways to protect patients from high drug prices and urge them to vote ƵyesƵ on The Affordable Prescriptions for Patients Act.
Also, we hope enough people on Capitol Hill recognize that Patent Eligibility Restoration Act and the PREVAIL Act wonƵt make things better for voters in their districts. On the contrary, these two bills undo some of the strongest tools we have to prevent brand-name drug companies from blocking competitors and keeping prices artificially inflated for years after their patents should expire.
Patricia Kelmar is senior director, health care campaigns for the U.S. Public Interest Research Group.
