PTAB Reform Bill Won’t Help Cut Drug Prices, Groups Say

Ten think tanks and consumer groups have lined up in opposition to a Senate bill that proposes substantial changes to how patent challenges operate at the Patent Trial and Appeal Board, saying the measure will ensure “Americans continue paying more than the rest of the world for prescription drugs.”

In a public letter addressed to the U.S. Department of Health and Human Services on Tuesday, the groups took aim at both the Promoting and Respecting Economically Vital American Innovation Leadership Act, or PREVAIL Act, introduced in June by U.S. Sens. Thom Tillis, R-N.C., and Chris Coons, D-Del., and proposed rulemaking from the U.S. Patent and Trademark Office that the agency started pushing in April.

“What brings them together is that both directly attack the rules for accessing and the implications of accessing the proceedings for challenging patents,” said Alex Moss, formerly an attorney at the Electronic Frontier Foundation who now runs one of the groups endorsing the letter, the Public Interest Patent Law Institute.

She put together the letter, which was backed by think tanks like Public Citizen and the R Street Institute, as well as medical patient groups like Patients for Affordable Drugs and T1 International, and groups like the U.S. Public Interest Research Group.

“What [these proposals] have in common is that they ensure that some patents, which are invalid, won’t be challenged at all, or won’t be challenged successfully, even though they would have under the existing legal regime,” Moss said.

The criticisms from Moss go straight to the heart of Coons and Tillis’ legislation, which aims to make it harder to invalidate patents over eligibility and rein in when parties can use the PTAB.

The issue is a longtime focus for Moss, a self-described “patent nerd” who had been named “the Mark Cuban Chair to Eliminate Stupid Patents” at the EEF, before leaving the group to focus more intently on patents. In Tuesday’s letter, she connected her issues with invalid patents directly to the language of an executive order from President Joe Biden last year that aimed to lower prescription drug costs.

“Because invalid patents have a significant impact on drug prices, proposals aimed at restricting access to proceedings for eliminating invalid patents raise serious policy concerns,” Moss wrote, adding that “these proposals would primarily benefit the owners of invalid patents … [and] would exacerbate our country’s ongoing health care crisis, ensuring Americans continue paying more than the rest of the world for prescription drugs.”

Moss also touched on what she saw as Coons’ overall interest in the bill, being its most powerful backer as chair of the Senate’s intellectual property subcommittee.

“Obviously, Senator Coons has a longstanding interest in protecting patent owners and the patent owners that he’s interested in protecting include branded pharmaceutical companies,” Moss said. “There’s also a huge industry of patent litigation in Delaware, and so there are a lot of interests that he represents that are interested in more invalid patents.

A spokeswoman from Coons’ office told Law360 that the senator disagreed with the letter’s characterization of the bill.

“He was proud to support the Biden administration’s efforts to lower drug costs for American families, and disagrees that the PREVAIL Act would inhibit that objective,” she wrote.

Representatives for Tillis’ office did not return a request for comment on the letter, nor did representatives for the patent office, regarding its attack on the office’s own proposed reforms. 

But Moss is not the only one running opposition on the Coons-Tillis bill since it was introduced in June.

Josh Landau, a former WilmerHale lawyer who now works for a tech industry lobbying group called the Computer & Communications Industry Association, wrote last month that the bill would “make it more difficult to challenge invalid patents on their merits.”

Landau’s group represents the interests of companies like Amazon, Apple and Intel, among other prominent defendants in patent cases.

“It is not clear how this legislation would help inventors and innovation as its proponents suggest, but non-practicing entities and their funders will surely welcome a new law that makes it easier to continuously engage in baseless infringement litigation, without being subject to review,” he said.