Adam Mossoff on Drug Patents and Affordability

ICLE Academic Affiliate Adam Mossoff was quoted by IPWatchdog from his U.S. Senate Judiciary Committee testimony on the role of patents in the prescription-drug prices. You can read the full piece here.

Professor Adam Mossoff of the Antonin Scalia Law School, George Mason University and Jocelyn Ulrich, Vice President, Policy & Research for PhRMA, were the two pro-patent witnesses on the panel. William Feldman, Associate Physician, Division of Pulmonary and Critical Care Medicine at Brigham and Women’s Hospital; Professor Arti Rai, Elvin R. Latty Distinguished Professor of Law at Duke Law; and David Mitchell, President and Founder of Patients for Affordable Drugs, all argued from different perspectives that patent abuses are the key reason Americans pay more than four times those in other economically comparable countries for the same drugs.

…Professor Mossoff, on the other hand, said that “policy-driven arguments about patents have sown confusion.” The problem, Mossoff said, is that the causes of U.S. drug pricing problems “are complex and multidimensional yet we’ve reduced it to a single cause – patents.” Mossoff pointed to two federal laws that are presently being misused by those seeking to assert price controls—the Bayh-Dole Act  and Section 1498—and said that imposing march-in rights for pricing under Bayh-Dole or forcing compulsory licenses under Section 1498 would “turn the law on its head” and would also be ineffective.

Mossoff also explained that the statistics cited by Durbin on NIH’s role in the R&D process are misleading. As of 2018, Mossoff said, private companies invested $129 billion in private R&D funding, “which dwarfs the $40 billion or so by NIH.” One 2021 study showed that the 23,200 grants by NIH in the year 2000 were linked to just 18 FDA approved meds by 2020. “NIH funds very far upstream initial research and then once the university researchers figure out it’s important, they get a patent, the university licenses it to a biotech company… and that’s what accounts for the $2.6 billion on average that goes into drug development and ultimately leads to an FDA-approved drug in the marketplace,” Mossoff said.

…“I’ve been here for 10 years and the substance of this hearing is not materially different than the substance of hearings that I had in my first Congress here,” Tillis said. He alluded to his thwarted efforts to obtain information on I-MAK’s data, which Mossoff and others have called out as being flawed, and said the Committee has failed to make progress and may have even taken steps backward with “well-intentioned provisions in the [IRA]” because “we at least know we’re reducing incentives to invest and take risk.”