Texas Republican Representative Jodey Arrington introduced a new bill today to limit so-called “patent thickets” by limiting the number of patents that can be asserted in an infringement action. The bipartisan Eliminating Thickets to Increase Competition (ETHIC) Act aims to lower prescription drug costs.
A bipartisan group of five members of the US House of Representatives introduced a bill today aimed at limiting so-called “patent thickets.” The Eliminating Thickets to Increase Competition (ETHIC) Act would limit the number of patents that can be asserted in an infringement action to just one per patent group.Patent thickets describe the intricate web of overlapping patents that innovators argue severely limit their ability to enter the market and compete.
Led by Texas Republican Representative Jodey Arrington, the bill is co-sponsored by California Republican Representative Darrell Issa, Texas Republican Representative August Pfluger, Texas Democratic Representative Lloyd Doggett and Washington Democratic Representative Pramila Jayapal.
“America leads the world in medical innovation and Congress understands the necessity of strong IP protections. Groundbreaking research and development fuels our economy, improves quality of life for patients, and brings down healthcare costs – one of the drivers of our national debt,” Arrington said in a statement. “Unfortunately, loopholes in our current patent system allow manufacturers to file for duplicative patents that delay competition. I am proud to lead this legislation to ensure new patents include real innovation and bring additional value to patients.”
By limiting patent infringement assertion to one patent per group, the bill co-sponsors hope to limit the complexity of patent litigation and make it easier for innovative and generic medication to enter the market.
A patent group is defined in the legislation as patents that are named in multiple disclaimers of other commonly owned patents. The change would also apply to New Drug Applications (NDAs) filed with the Food and Drug Administration.
“By allowing only one patent per terminally disclaimed group, we strike a balance to ensure every drug improvement receives proper protection without hindering innovation,” Pfluger said in a statement. “Our goal with this bill is to lower skyrocketing drug costs to relieve unnecessary burdens on Americans while fostering a competitive and inventive healthcare landscape.”
Issa’s support is key for the bill, as it must first pass through the House Judiciary intellectual property subcommittee, which he chairs.
Vermont Democratic Senator Peter Welch introduced a similar patent thicket bill in the 118th Congress, also limiting the number of patents that can be asserted, though it never advanced through the Senate Judiciary intellectual property subcommittee.
A broader version of Welch’s legislation, limiting patent assertion to 20 per infringement action for biosimilar drugs, was briefly included in the 2024 year-end budget deal, but was stripped out in final negotiations (see here). Some industry practitioners told MLex they were skeptical of the 20-patent limit, as most infringement suits over biosimilars involve fewer than 10 patents.
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