Republicans and Democrats in the Senate Judiciary Committee on Tuesday demonstrated bipartisan support for reforming the patent system in order to lower the price of prescription drugs. 

Chairman of the Judiciary Committee Dick Durbin (D-IL) arranged the hearing to address the loopholes in the patent system that are allegedly manipulated by pharmaceutical companies to extend patent terms.

Ranking member Lindsey Graham (R-SC) said that he is “open-minded” about constricting patent protections for pharmaceutical companies, expressing frustration that the work already done by the committee has not moved forward.

According to the nonpartisan drug price advocacy group CSRxP, five bipartisan bills passed out of the Judiciary Committee in February 2023 directed toward patent reform could save more than $4 billion annually.

“Count me in for challenging the patent system,” Graham said. “The goal is to enhance medical science and deal with sheer greed, for lack of a better word.”

Panelist Dr. William Feldman, a physician and professor at Harvard Medical School, provided an example of patent abuse in which makers of inhalers apply for small changes in device patents to extend their market exclusivity. These products, however, according to Feldman, had not undergone changes in chemical composition since the 1980s.

One of the bills passed out of committee last year, sponsored by Sen. John Cornyn (R-TX), the Affordable Prescriptions for Patients Act, enables the Federal Trade Commission to prohibit a situation called product-hopping. Product-hopping is when a manufacturer switches from an original product to a follow-on product with an identical purpose after the patent for the original drug has expired.

“I believe in exclusivity that is provided to people who discover new life-saving drugs to be protected,” Cornyn said. “But at the same time, I’m angry when I look at the abuse of the patent system by filing as many as 165 patents for a drug like Humira,” an anti-inflammatory drug used to treat a variety of conditions from Crohn’s disease to rheumatoid arthritis. 

Sen. Mazie Hirono (D-HI) said she did not believe patent reform was the most comprehensive solution, saying instead that moving toward a single-payer healthcare system would be more beneficial.

“There is no silver bullet,” Hirono said. “I realize that the patent system abuse is a part of the problem, but for us to just sit here and point our fingers at the patent system is not going to solve it. It’s not the silver bullet.”

Hirono also noted that part of the reason for lower prescription drug costs in European or Canadian markets is because of their respective single-payer healthcare systems and the ability of their governments to negotiate directly with pharmaceutical companies. 

Democrats and Republicans on the committee, however, agreed that closing loopholes in patent protections or constraining patent terms is an achievable solution that, if done right, would not limit innovation.

“I’m very open-minded about stopping abuse. What I don’t want to do is kill the goose that laid the golden egg,” Graham said.

“We can balance being the innovative capital of the world and having affordable prescription drugs for Americans,” Sen. Cory Booker (D-NJ) said. “These are not counter.”

Several of the panelists, including pharmaceutical company interest group representative Jocelyn Ulrich, said that there is a need for reform of pharmacy benefits manager as a critical additional step that would complement patent reform.

PBMs act as middlemen drug purchasers that are intended to negotiate prices between pharmaceutical companies, insurance companies, and pharmacies. The vertical integration of PBMs with insurance companies and large pharmacy chains, however, leads critics to contend that they are a key component that raises prices.

“New drugs are good. Gaming the system is bad. PBMs need to be better controlled,” Graham said.

There are several bills that have come out of committees of jurisdiction in the House and Senate to reform PBMs, including addressing anti-competitive practices related to vertical integration. None of them have been taken up for a full floor vote in either chamber.