Illustration: Shoshana Gordon/Axios
The Senate Judiciary Committee on Thursday pulled two controversial bills, the PREVAIL and PERA acts, that would have altered the patent system with big implications for biotechs and pharmaceutical companies.
Why it matters: It's a sign of lingering bipartisan concern over a pair of bills that critics view as friendly to pharmaceutical interests, and lowers their odds of being wrapped into a year-end deal.
What they're saying: Sponsors Chris Coons and Thom Tillis abruptly announced during a Thursday morning markup that the legislation was being pulled from consideration because they needed more time to court support from panel members.
- Coons later said that two bill supporters he wouldn't identify were absent and that two others were still on the fence and needed more time to understand the issues better and possibly offer amendments.
- Sen. Marsha Blackburn asked for more time, and Sen. Ted Cruz was concerned about ways to make the patent process easier for small and independent inventors, Coons said at the hearing.
- Coons told reporters that most senators aren't up to speed on patent policy and that "there are some widely varying characterizations of the function and role of the [Patent Trial and Appeal Board], and I'm having to go to members individually and walk through here's what's true, here's what's happening."
Tillis told Axios after the hearing that although he was hearing some eleventh-hour concerns from both sides of the aisle, he was committed to hearing them out and working on the legislation.
- "The people who didn't want this to move forward should not view today as a win," Tillis said. "They should view it as an indication that we've got momentum and I've got commitment. And we're going to get something done. But I'm going to do the work to try and address their concerns."
Friction point: Democratic senators including Sen. Sheldon Whitehouse who've squared off with pharmaceutical interests declined to stake out a position on the bills this week.
- Coons acknowledged concerns of Sens. Peter Welch, Richard Blumenthal and Amy Klobuchar about the effects the bills could have on drug pricing, and the way PREVAIL could prevent generic competitors and patient advocates from using the patent board to challenge drugmakers' IP.
- But Coons said he had worked with those senators to address those concerns and had added amendments to fix those issues.
What's inside: Both PREVAIL and PERA could have significant ripple effects in the life sciences.
- The PREVAIL Act would raise the bar for challenging patents by requiring petitioners to have standing, either by having been sued or threatened with a patent infringement lawsuit.
- PERA would amend what kinds of inventions are eligible for patent protection and make it easier for certain scientific discoveries like gene therapies to be patented.
The other side: Patients for Affordable Drugs has pointed out how PREVAIL particularly could make drug prices higher by making it harder to undo "bad" patents.
- "We're encouraged by the delay on S. 2220 and S. 2140, but the threat to patients isn't over. Even with potential amendments, the committee is unable to fix the fundamental flaws of the bill," Merith Basey, executive director of Patients for Affordable Drugs, said in a statement.
- "PREVAIL and PERA would still protect drug companies from competition, keeping prices high. This bill remains harmful for patients, and no amendment can disguise that reality."
- PhRMA has supported PREVAIL but hasn't yet taken a stance on PERA.
What we're watching: Whether Coons and Tillis can get enough support and have enough time on the calendar to reschedule another Senate Judiciary markup on the bills before the December recess.
- Both senators told Axios they were going to push for another markup by the end of the year.
