Jun 12, 2023 - Health

Drug patent reforms set off Senate tug of war

Illustration: Natalie Peeples/Axios

A fight is heating up over a plan to keep drugmakers from gaming the patent system that would potentially lower drug prices as senators weigh a broader health care package.

  • But the outcome is far from certain, given the range of competing health care interests.

Driving the news: A patent bill co-sponsored by Sens. Richard Blumenthal (D-Conn.) and John Cornyn (R-Texas) specifically takes aim at "product hopping," in which a drug company makes small changes to a drug to try to extend its period of market exclusivity — and also plays into a battle between drug companies and PBMs.

  • The potential vehicle is a package Senate Majority Leader Chuck Schumer is putting together, which may also cap insulin costs at $35 per month for people with private health insurance and overhaul pharmacy benefit manager practices.

What they're saying: Blumenthal told Axios he has spoken with Schumer about including his patent bill and he thinks it is "likely" to be part of the package.

  • But Cornyn is more wary of including the measure because he might end up opposing other parts of the package — including the insulin cap, which he called "price fixing."
  • "I'm not quite sure what [Schumer] has in mind yet, but I'm fearful that he's going to put some stink bomb in the package which will bring down everything else," Cornyn told Axios.

Between the lines: The drug industry trade group PhRMA opposes the bill, saying it would "create an unnecessary FTC enforcement cloud over almost any post-approval research and development."

  • "This would be devastating for patients since R&D that happens after FDA approval increases treatment options," PhRMA spokesperson Megan Van Etten said. "This progress should not be punished.”
  • The Pharmaceutical Care Management Association representing PBMs supports it. "Putting a stop to drug companies’ common and egregious, anti-competitive abuses of the drug patent system is fundamental to increasing competition in the market that will lead to lower prescription drug costs for employers and patients," PCMA spokesperson Greg Lopes said in a statement.
  • Lauren Aronson, executive director of the Campaign for Sustainable Rx Pricing, which includes PBMs, hospitals and others, added: "It is disappointing, but not surprising, to hear the pharmaceutical industry is attempting to derail passage of this bipartisan, market-based solution while continuing to wage a bogus blame game targeting others in the supply chain."
  • The brinkmanship also comes as pharmaceutical interests are suing to undo the Medicare drug price negotiations established in the Inflation Reduction Act.

What's next: Schumer said on the Senate floor last month that the insulin package is one of the items he wants to "begin the process of advancing" during this work period, which ends in late June.

  • It's unclear what the timeline is or if the package could slip. Schumer's office did not respond to a request for comment.

The bottom line: Even if the insulin package could get 60 votes and advance out of the Senate, it is unlikely to move in the GOP-controlled House. So the bigger fight over these policies could come later, in an end-of-year package that also has to extend health measures like community health center funding.

A version of this story was published first on Axios Pro. Get news like this by subscribing. Use code POLICY100 which gives you $100 off.

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