How to save the patent system in 3 easy steps

Samantha-Dupont
Samantha-Dupont
Samantha DuPont, MPH, Health Policy Consultant

Patents are in the news as Congress considers legislation to address patent abuses and anticompetitive behavior by the pharmaceutical industry.

If you’re tuning into these issues for the first time (or even the second or third) you’ll notice that there is some collective head-scratching about what’s going on, exactly, and what lawmakers can do about it. Multiple congressional hearings have attempted not only to peel back the curtain on patent abuses, which have been silently building over the years, but to understand the highly complicated machine that lies inside.

Once you start learning about patent abuses, the task at hand can feel daunting; progress can feel like it’s coming in fits and starts. But we can save the patent system. Just follow these 3 easy steps:

Step 1. Educate, educate, educate. Unless you are steeped in patent law, it’s fair to say that patent issues are rocket science. We need a steady stream of resources about what’s happening, which in turn will afford us enough knowledge to create effective policy solutions. Luckily, resources have been trickling out of congressional hearings and excellent explainers produced by organizations such as i-MAK and the Coalition Against Patent Abuse (CAPA). If you’re still familiarizing yourself with patent issues, I recommend starting with the Institute for Health Policy’s new primer on drug patents, which gets down to brass tacks.

Step 2: Get some “simple” wins. Like other issues in high drug pricing, there are no easy fixes to patent abuses. Nevertheless, lawmakers need to start somewhere, and currently that somewhere is picking off relatively uncontroversial fixes that address relatively minor holes in the system. For example, Congress is considering bills to make patent information more transparent or to define and generally make illegal pay-for-delay settlements, which pharma uses to keep generics off the market. These are not earth-shattering proposals (at least, not to wonks), but wins on these bills are necessary to build political will and momentum.

Step 3: Play the long game. It’s safe to say that sweeping legislation to alter the patent system — a system with roots in the U.S. Constitution, and which nearly every industry in America has a stake in preserving — won’t happen in the next few years, if ever. But we also can’t avoid a major government fix to a major market problem is eroding. The patent system — granting monopoly rights over inventions — is meant to encourage innovation, especially for inventions that would not otherwise come to market because they are too risky or expensive. In return for monopolies, inventors must disclose their inventions, which allows competitors to jump in the game quickly after patents expire. The patent system’s goals are noble, but its outcomes are not. Pharmaceutical companies are getting patents on products that are not truly innovative; patent protection is extended years beyond what the Congress intended; and competition is being thwarted so much that generics have difficulty entering the market, even after a drug patent expires. We need to constantly keep a line of sight on how the policy solutions being proposed can truly re-balance the system to reward both innovation and competition, rather than addressing a few bad actors or a few pernicious strategies.

Asserting that we can save the patent system in 3 easy steps is, of course, incredibly hyperbolic. Any issue in high drug pricing — including patent abuse — is not easy to address. It is useful, though, to remind ourselves that seemingly intractable problems can be solved if we go back to the basics of effecting change.

Download Drug Policy 101: Drug Patents