Affordable Prescriptions for Patients Act Introduced in the Senate

On May 9, 2019, U.S. Senators John Cornyn (R-TX) and Richard Blumenthal (D-CT) announced that they had introduced the Affordable Prescriptions for Patients Act. According to the sponsors’ press release, the bill is designed to prevent “product hopping and patent thicketing within the Federal Trade Commission (FTC) Act.” In the press release Senators Cornyn and Blumenthal assert that pharmaceutical manufacturers have engaged in abusive tactics of “product hopping” (producing iterative minor reformulations of a drug) and/or “patent thicketing” (generating many patents on a single product) to extend their monopolies in the prescription drug market. According to the Senators, the bill would define “product hopping” and “patent thickets” as anticompetitive behavior, thereby allowing the FTC to “bring antitrust suits against bad actors who deliberately game the system, and [ ] would give them injunctive authority… to make the system fairer and operate as Congress intended.”

Meanwhile, in recent testimony before the House Judiciary Committee, USPTO Director Andrei Iancu was asked about the issue “evergreening” or “patent thicketing” in the context of pharmaceutical drugs, and he defended his Office’s practice of issuing multiple patents to the same drug, stating that each application is evaluated for whether the claimed invention “actually presents novel and nonobvious innovation vis-à-vis what’s come beforehand.”

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