Senate Advances Patent Thicket Reform Bill

On July 11, the Senate unanimously approved the Affordable Prescriptions for Patients Act (S. 150) to address patent “thickets.” Patent thickets is a way drug manufacturers manipulate the patent system by flooding the U.S. Patent and Trademark Office with a “thicket” of overlapping, follow-on patents with different expiration dates on a single drug to prevent or delay lower-cost drugs from coming to market.

The bipartisan bill was scaled down before passage, removing a provision to prohibit “product-hopping,” which allows drug companies to try to shift consumer demand from a brand-name drug facing generic competition to a different brand-name drug that wouldn’t face such competition.

The Congressional Budget Office estimated the patent thicket provision would save 1.8 billion over 10 years. The product hopping prohibition would have saved an additional $1.2 billion but faced strong objections from drug manufacturers. The bill now goes to the House for consideration. Given the unanimous action in the Senate, it may be an attractive “pay for” in a year-end health care package.