Prescription drug prices are a serious burden in America, and perhaps the chief modern example of why good intentions do not always equal solutions. Take the newly introduced Medication Affordability and Patent Integrity Act, sponsored by Sens. Maggie Hassan (D-NH) and Josh Hawley (R-MO).
Conceptually, it’s a modest transparency measure aimed at preventing contradictory statements to regulators. The bill would impose new certification and disclosure mandates on drug innovators when they interact with the FDA and U.S. Patent and Trademark Office.
That’s great in theory. But in practice, it would treat patents filed throughout a lengthy and dynamic process as evidence of earlier gamesmanship. From an economic standpoint, that’s a backward misunderstanding of how biomedical innovation works. It risks injecting uncertainty into the system, inviting collateral litigation, and weakening the incentives that help bring new cures and treatments to patients.
HATE BIG PHARMA ALL YOU LIKE, IT STILL MIGHT SAVE YOUR LIFE
Drug development is not a static event. It is a long, risky, and cumulative process. Medicines often receive initial FDA approval while research and patent-filing continue. New formulations, dosing regimens, delivery mechanisms, manufacturing improvements, and better scientific understanding can all emerge later. The improvements matter greatly for patients and may qualify as genuine inventions of their own.
For example, DARZALEX FASPRO, a cancer medicine for multiple myeloma, was first approved in 2015 as a lengthy IV infusion. It was later improved into a quick under-the-skin injection, making treatment far easier for many patients. An updated dosing approach for SPINRAZA, a spinal muscular atrophy drug developed in 2016, offered patients another potentially meaningful treatment option.
Strong patent protection is especially important with pharmaceuticals. Bringing new medicines to market requires enormous, fixed investment, years of clinical testing, and a high probability of failure. Once approved, rivals can often imitate the drug at a fraction of the innovator’s cost. Secure patent rights are what make financing the initial discovery profitable.
We cannot weaken this bargain. That’s the risk in requiring companies to certify consistency between statements made to the FDA and USPTO and to submit the same patentability information to both agencies during a long, evolving process. Failure to comply would create a new front in patent infringement suits, shifting disputes from whether the patent is valid and infringed to whether a company properly characterized voluminous regulatory communications years earlier.
That’s not a recipe for lower drug prices — it’s a recipe for litigation. Producers of generics and biosimilar drugs would have every incentive to comb through FDA and patent-office paperwork for alleged discrepancies. Even weak claims could raise settlement pressure on drug developers, increase legal costs, and cloud patent rights, undermining the expected returns of pivotal research and development.
That uncertainty matters. Pharmaceutical innovation is highly sensitive to expected rewards because investment decisions are made far in advance, under great scientific and regulatory risk. Some projects at the margin will not be funded. Some follow-up drug improvements will not be pursued. We’ll scarcely know these drugs could have even existed.
The bill assumes a systemic abuse problem that has not been demonstrated. Patent law already punishes applicants who intentionally deceive the USPTO, and unenforceability can result. A 2024 USPTO study cautioned against drawing simplistic conclusions on these matters, finding that market exclusivity depends on a complex interaction of patents, FDA rules, and other factors.
Lawmakers should not ignore the fundamental differences between the FDA and USPTO. The FDA reviews safety and efficacy, often using confidential clinical, manufacturing, and trade-secret information. The USPTO examines whether claimed inventions qualify for patent protection. Forcing more FDA-submitted material into the patent process risks burying examiners under irrelevant information and the market exposure of sensitive know-how.
That last point has broad consequences. America’s pharmaceutical strength rests on more than laboratories and capital markets. Our legal institutions make these things possible by protecting both patents and confidential business information. Making disclosure riskier and patents easier to attack doesn’t just help generic drug makers. It helps foreign rivals that do not bear the same cost of pioneering research. China would welcome a weaker U.S. innovation ecosystem.
ANTITRUST MISTAKE ENTERS THE DRUG MARKET
The better approach is evidence-based reform and enforcement. Enforce existing law to punish fraud. If U.S. patent examination is lagging, give examiners better resources. And if drug affordability is the goal, Congress should start by addressing the convoluted regulatory and payment rules that inflate prices.
Patients need affordable medicines. They also need tomorrow’s treatments for cancer, Alzheimer’s, and conditions for which no adequate therapy exists. Making it marginally easier to copy drugs won’t deliver. The idea may look pro-consumer in the short run, but over time, it will mean fewer breakthroughs, slower progress, and a weaker economy.
Alden Abbott is a senior research fellow with the Mercatus Center at George Mason University and a former general counsel for the Federal Trade Commission.