Letters to the Editor: Save America’s Patent System

In April, the New York Times endorsed historic reforms to the U.S. patent system. For those of us advocating for a more just and equitable medicines system, this was clearly a watershed moment. After all, there’s no fixing the drug pricing problem without fixing the drug patent problem.

Every time Americans walk into the pharmacy, they experience the consequences of an outdated patent system. Beyond medicines, the patent system affects just about every industry you can think of, and the significance of the New York Times’ endorsement resonated with a wide range of people, from patients to lawyers to small businesses.

Here, you’ll see a collection of “Letters to the Editor” that were sent to the New York Times, written by people and organizations who are voicing their belief that making common sense reforms to the patent system is an urgent and essential priority. In these Letters, there are calls to center racial justice in patent reform, preempt potential patent abuses in the psychedelics space, protect the interests of the the nation’s tech startups and small businesses, and, of course, address patents’ role in the monopolization of life-saving medicines both in the U.S. and around the world. The authors, in alphabetical order, are:

  • Erik Peinert, American Economic Liberties Project
  • Alfred Engleberg, ​​The Engelberg Foundation
  • Ady Barkan and Jamila Headley, Be a Hero
  • Abby Rives, Engine
  • Graham Pechenik, Calyx Law
  • Liberation in a Generation
  • Abby Maxman, Oxfam America
  • T1 International
  • David Mitchell, Patients for Affordable Drugs
  • Alex Moss, Public Interest Patent Law Institute

As the Times’ Editorial Board said, “The patent system affects everyone, though. It’s time the people in charge of it recognize that.”

Erik Peinert, American Economic Liberties Project

To the Editor, regarding the recent editorial, “Save America’s Patent System”:

For a generation, monopolies and corporations have abused America’s broken patent system to a number of harmful ends. These include controlling technologies they often did not even develop, blocking new entrants by abusing patent thickets and other arrangements, and profiting by price-gouging the public for essential medicines.

Our broken patent system was codified internationally with the 1994 TRIPS agreement, allowing major pharmaceutical firms to offshore production and jobs while retaining control over essential technologies.

To prevent our patent system from entrenching the political and economic control of a few corporations and the wealthy, we should return to America’s historical antimonopoly approach to patents. We once required the effective mandatory licensing of critical patents on fair terms as an antitrust concern, and had clear rules for how patents could and couldn’t be used to restrict access or control prices.

Erik Peinert

The writer is the Research Manager and Editor at the American Economic Liberties Project.

Alfred Engelberg, ​​The Engelberg Foundation

To the Editor:

The administrative reforms you propose to deal with the serious flaws in the patent system fall short of what is needed.

Once a patent is granted it is presumed to be valid. Clear and convincing evidence is required to overcome that presumption. These arcane rules give patent owners too much power and the incentive to procure bad patents.

A Patent Examiner typically spends a couple of days reviewing a patent application before granting a patent. Competitors who are adversely impacted by the patent often possess more pertinent information bearing on whether an invention truly exists. Yet, information that might have prevented a patent from being granted is often insufficient to invalidate it afterward because of the presumption that an issued patent is valid. That makes a flawed bureaucratic decision-making process more important than the truth.

In an information age, the patent system should welcome crowd sourcing of relevant information before it grants patents rather than giving deference to an examination system that too often makes decisions based on inadequate information.

Alfred Engelberg

The writer is a retired patent counsel to the Generic Pharmaceutical Industry Association.

Ady Barkan and Jamila Headley, Be a Hero

Dear NY Times Letters,

As leaders in the health justice movement, we know that to guarantee health care for all we must end the chokehold that pharmaceutical corporations have long maintained over life-saving medicines and other technologies. Their excessive profiteering comes at the public’s expense — both through the suffering and loss of people we love, and in the form of taxpayer dollars allocated to research and development.

Even in the midst of the COVID-19 pandemic, pharmaceutical corporations like Pfizer and Moderna have supplied negligible numbers of vaccines to low and middle-income countries, while refusing to share critical COVID-19 vaccine technology with the rest world — hamstringing the response to the biggest public health crisis in more than a century here at home and around the globe. From COVID-19 vaccines to insulin, through immoral price gouging and monopoly control, we have for too long let pharmaceutical corporations determine the price of our survival and make critical moral decisions about who gets a shot at living at all.

We agree with the Editorial Board. Reform of America’s patent system is urgent and long overdue.

Ady Barkan and Jamila Headley

The writers are the co-executive directors of Be A Hero — a national organization working to transform America’s broken health care system.

Abby Rives, Engine

Dear Mr. Feyer,

The Editorial Board’s prescriptions for patent reform hold promise for the nation’s tech startups and small businesses. It’s not just drug prices — huge swaths of the U.S. economy depend on a balanced patent system built to issue and enforce only valid patents.

Many startups will only interact with the system when they are wrongfully accused of infringing patents that claim old ideas in vague, overbroad terms. Such patents shouldn’t exist, but they do, and they frustrate startup innovation and competition. Bad patents can make a medtech startup in Texas feel like a hostage, force a Missouri-based smart speaker startup to divert substantial sums from hiring to cover legal fees, and force some to close-up shop altogether.

Saturday’s call to save the system rightly centers innovations that mark real progress. And the last part — public participation — is critical. The patent office always hears from companies that make a lot of money off patents. It needs to be able to listen to the rest of us, including startups who suffer when bad patents stand in their way.

Abby Rives

The writer is IP Counsel at Engine, a policy, advocacy, and research non-profit supporting startups.

Graham Pechenik, Calyx Law

To the Editor:

It is heartening to read your support for patent reform. The need for reform is clear from the deluge of patents being filed on psychedelics. These compounds, when provided with therapy, show promise in the treatment of mental health conditions, and as this paper suggests, may be “The Next Big Addiction Treatment.” In view of this, and a market projected to reach $10.75B in five years, dozens of companies are rushing headlong to secure patent rights.

Yet many of the compounds and practices in these patent applications are based on traditional and indigenous knowledge dating back centuries, raising questions of equity and extraction, and others have been used in the psychedelic community for decades. Because psychedelics were criminalized in the U.S. under the War on Drugs, it can be impossible for a patent examiner to properly assess whether an invention is truly novel and non-obvious, and reject an application based on prior art. Issues with granted patents have already caused close to a million dollars to be spent on challenges.

As psychedelics enter the mainstream, concern builds that a growing thicket of patents will lead to immense profit for a few, while stifling further innovation and leaving the neediest patients unable to access these important treatments. This paper notes: “The Psychedelic Revolution Is Coming. Psychiatry May Never Be the Same.” Let’s hope the problems with the patent system won’t be the same either.

Graham Pechenik

The writer is a registered patent attorney and the founder of Calyx Law.

Liberation In A Generation

Patent Reform Must Be Rooted in Racial Justice

Yes to patent reform, curbing corporate concentration, and regulating the control that corporations have over our fundamental human rights. And we must center racial justice in all of these efforts. Black, Indigenous, Latinx, Asian and Pacific Islander people navigate the sharpest edges of our economy. Unfortunately, pharmaceuticals is just one sector in which people of color’s ability to access and afford life-saving medicine is at the whim of corporate interests.

Patent control is one tool of many — e.g., mergers and acquisitions, non-compete clauses, and other anticompetitive practices more generally — that those seeking to secure market dominance utilize to keep competitors out of markets, drive price gouging, restrict access to goods and services, and block innovation and entrepreneurship, all while gaining outsized profits. That market power and control too often comes at the direct expense of Black and brown people, especially as consumers and workers. As we journey to curbing corporate concentration, it’s necessary to acknowledge that any solution must generate from, center, and name people of color as the core beneficiaries of these efforts.

Liberation in a Generation is a national movement support organization building the power of people of color to totally transform the economy — who controls it, how it works, and most importantly, for whom.

Abby Maxman, Oxfam America

To the editor,

Your recent editorial, “Save America’s Patent System,” highlights how patents have impeded American patients’ access to treatments at times without rewarding true therapeutic advances.

Pharmaceutical monopolies also undermine access to lifesaving medical tools beyond America’s borders. As the COVID-19 pandemic has demonstrated, intellectual property (IP) monopolies allow private companies to decide who gets vaccines and treatments, at what price, and when. The result has been inequitable access, leaving billions of people waiting for lifesaving tools to protect against COVID-19. Even a proposal to temporarily ensure World Trade Organization IP rules do not stand in the way of countries’ efforts to increase access to medical tools — the “TRIPS waiver” — has not progressed, despite support from most Member States.

The IP system in the US and globally should balance promoting innovation with protecting access to medical tools. Afterall, a lifesaving treatment or vaccine cannot save lives if people cannot access it.

Abby Maxman

The writer is the President & CEO of Oxfam America, a global organization that fights inequality to end poverty and injustice.

David Mitchell, Patients for Affordable Drugs

I commend The Times’s editorial board for making a compelling case for reform of our patent system. I have an incurable cancer. The drugs keeping me alive — which carry a list price of more than $900,000 annually — will one day stop working, so I care deeply about innovation and new drug development. But drugs don’t work if people can’t afford them.

When a drug company makes a truly inventive discovery, it should be rewarded with a patent and receive a fair return. But the drug industry would have you believe that every patent granted is an indicator of innovative achievement. That couldn’t be further from the truth.

In fact, the industry’s anti-competitive practices actually inhibit innovation. Neither new patents nor new drugs necessarily equal real innovation. Worse, in too many cases manufacturers are gaming America’s patent system to prevent competition and block affordable generic and biosimilar drugs from coming to market.

We can — and should — bring down monopoly prices by empowering Medicare to negotiate, but we must also reform our patent system to address the drivers that lead to unjustified monopolies in the first place.

David Mitchell

The writer is the founder of Patients for Affordable Drugs Now.

Alex Moss, Public Interest Patent Law Institute

It shouldn’t be controversial to expect patented inventions to be new and useful, but it is. That’s because a handful of big companies treat the Patent Office like an A.T.M.: a reliable source of cash for the cost of a small fee. Because the Patent Office depends on those fees, it treats companies applying for protection like customers to be served instead of applicants to be evaluated. What about members of the public who depend on patented technology to earn a living, get an education, or access medical care? We get ignored.

The editorial board is absolutely right: The patent system needs to change. But those who benefit from it most will fight tooth and nail to protect it. We need the new director of the Patent Office to prioritize the public’s interest and the patent system’s purpose — promoting scientific and technological progress — no matter how loud the cries of private companies accustomed to five-star service.

Alex Moss

The writer is executive director of the Public Interest Patent Law Institute.

T1International

At T1International, we believe in a world where everyone with type 1 diabetes, no matter where they live, has everything they need to survive and achieve their dreams. The inventors of insulin sold the patent for $1, saying “insulin does not belong to me, it belongs to the world”. Today, 100 years later, many people living in the U.S. spend over $1,000/month on insulin. Patent thicketing, along with pay-for-delay patent dispute settlement agreements and other patent evergreening and monopoly pricing practices, have hindered true competition and thus the lowering of insulin prices.

The insulin policies being discussed in Congress are critical for helping people in need right now and they only provide band-aid solutions to the insulin price crisis. We support patent reform as part of dismantling the insulin cartel that keeps the price so high as described by the Editorial Board (“Save America’s Patent System”, April 16, 2022). Our lives as a community of people dependent on insulin to survive depend on it. Our call for #insulin4all includes patent reform.

T1International is a non-profit led by people with and impacted by type 1 diabetes for people with type 1 diabetes.

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A team of lawyers, scientists, and health experts challenging systemic injustice and advocating for health equity in drug development and access.