ICYMI: New York Times Editorial Calls on Lawmakers, Regulators to Address Abuses of the U.S. Patent System

Ample Evidence Points to Drugmakers as Biggest Abusers of the U.S. Patent System, Solutions including the “Restoring the America Invents Act” are Needed

IN CASE YOU MISSED IT: In case you missed it, The New York Times published an editorial titled, “Save America’s Patent System” on Saturday, April 16 with contribution from CAPA Executive Director Matthew Lane pointing to major flaws within the U.S. patent system and ways lawmakers and regulators, such as the U.S Patent and Trademark office (USPTO), can pass meaningful reforms to restore balance between competition and innovation.  As ample evidence builds against some of the nation’s largest drugmakers who use anti-competitive tactics to extend market exclusivity of brand-name drugs, solutions like the bipartisan “Restoring the America Invents Act” (RAIA) could be a critical solution to increasing low-cost alternatives in the marketplace and reduce costs for millions of American patients.

Key excerpts:

  • “Twelve of the drugs that Medicare spends the most on are protected by more than 600 patents in total, according to the committee. Many of those patents contain little that’s truly new. But the thickets they create have the potential to extend product monopolies for decades. In so doing, they promise to add billions to the nation’s soaring health care costs — and to pharmaceutical coffers.”
  • “The best way to ensure that patents spur innovation instead of thwarting it is to set a high standard for what deserves patent protection in the first place and then to honor it. In the United States, that standard already exists: To secure a patent, an invention must be truly novel and nonobvious, it must be described in enough detail for a reasonably qualified person to build and use it, and it must actually work. The problem is these rules are poorly enforced. The pharmaceutical industry is a good example. Nearly 80 percent of the drugs associated with new patents between 2005 and 2015 were not new.”
  • “The Patent Trial and Appeal Board, a panel of judges that reviews and decides on patent challenges without lengthy court battles, was meant to solve at least some of these problems. But it has been beset by criticism and legal challenges since its creation in 2012. It has also been undermined by Trump-era policies that allow the patent office to deny legitimate patent challenges for purely bureaucratic reasons. During the Trump administration, critics say, such discretionary denials allowed scores of dubious patents to stand.”
  • “Lawmakers should pass the Restoring the America Invents Act, a bill that would limit such discretionary denials, and Ms. Vidal should use her authority to curb this practice in the meantime. Officials should also consider broader fixes: Make it easier to challenge bad patents before they are granted. Force secondary pharmaceutical patents to undergo an automatic review by the appeal board. Rethink the legal structure for patent challenges. ‘The appeals court tends to be an echo chamber,’ said Matthew Lane, a patent lawyer with the public advocacy group InSight Public Affairs. ‘Because judges there tend to come from and listen to the patent bar.’”
  • “Ms. Vidal should make collaboration with regulatory agencies the rule. She should also work with the Federal Trade Commission, an agency whose job it is to ferret out exactly the kind of anticompetitive practices that the patent office is vulnerable to.”

Read the full piece by the New York Times Editorial Board HERE.

Read more on other solutions to end patent abuse HERE.