Disappointing vote could mean higher prices for prescription drugs

In a disappointing blow to efforts to reduce the high cost of drugs, the Senate Judiciary Committee narrowly voted out of committee the PREVAIL Act.  For months PIRG, our members, and a strong coalition of health care and patient groups have been urging Senators on the committee to oppose the bill. But on Thursday November 21, 2024, 11 Senators voted YES, instead of NO. 

Why is the PREVAIL Act bad for patients and prescription drugs prices?

The PREVAIL Act, sponsored by Senators Durbin (D-Illinois) and Tillis (R-North Carolina), proposes changes to the U.S. patent system which would make it harder than ever for generic and biosimilar drugs to enter the market and compete on with brand name drugs. Everyone knows competition brings down prices. And most folks know that biosimilar and generic drugs are therapeutically equivalent to the brand name drugs – a good deal because they cost less and there is no loss in quality for patients who chose the lower cost option. 

Although reforms to the patent system are needed, PREVAIL is not solution.

Too often, pharmaceutical companies apply for dozens of patents on one drug, even years after the original patent. They build a “patent thicket” – piles of patents which prevent generic competitors from selling their products. This allows the brand name company to keep raising their prices because patients and their doctors have no alternatives. that have been on the market even years after the original break-through drug patent has expired. 

Today the U.S. patent office (PTO) is dealing with thousands of patent applications and even one drug might have dozens of applications. We would hope the patent examiners always get it right when they decide to grant a patent and allow a drug company exclusive monopoly pricing for 20 years. But patent examiners working under time pressure to review applications are bound to make mistakes. 

That’s why it’s important that there is a viable and robust system to ensure granted patents are valid. A check on the system.

The American Invents Act did just that. It set up a quicker and less expensive way to challenge weak patents than expensive federal court lawsuits. The public and others like the generic drug manufacturers are allowed to ask a panel of three patent office employees to take a second look at a patent application and decide if maybe the patent should never have been granted.

But the PREVAIL Act, even with a last-minute amendment, would seriously undermine this swifter and cheaper way to reconsider weak patents. If we can’t get bad patents revoked, we have a smaller chance of ridding our system of weak patents. And that means those patent thickets will continue to stand in the way of patients getting access to lower cost generics and biosimilars in a timely way. 

High prescription drug prices hamper patients’ ability to afford their co-pays and deductibles for the medication they need. And these high prices are threatening long-term sustainability of our health insurance systems, both in the private market and in state and federal programs.

You can watch the hearing for yourself.  The discussion starts at 44:35. The very close vote of 11-10 didn’t fall on party lines. PIRG wanted Senators to vote NO. 

Yes – 11
Durbin – Yes
Tillis – Yes
Coons – Yes
Blumenthal – Yes
Hirono – Yes
Booker – Yes
Klobuchar – Yes
Welch – Yes
Graham – Yes
Butler – Yes
Blackburn – Yes

 No – 10
Whitehouse – No
Hawley – No
Padilla – No
Ossoff – No
Grassley – No
Lee – No
Cornyn – No
Cruz – No
Cotton – No
Kennedy – No

Help us block this bill from approval by the full Senate.