May 21, 2021

U.S. Senate
Washington, D.C.  20510

Dear Senator,

The Council for Citizens Against Government Waste understands there may be an effort underway to “hotline” S. 1435, a bill that would amend the Federal Trade Commission (FTC) Act with regard to pharmaceutical patents and “product hopping” and have it pass by unanimous consent.  On behalf of the more than one million members and supporters of CCAGW, I urge you to object to any effort to hotline S. 1435.

Currently, there is no bill language available to the public on Congress.gov, but it is our understanding that S. 1435 is similar to legislation introduced by Sen. John Cornyn (R-Texas) in the last Congress, S. 1416, that would have given the FTC unprecedented authority to find anti-competitive liability merely for having patent applications granted by the Patent and Trademark Office.  This liability would not be based on science, but on whether a non-patent-trained administrative law judge decides that the patent qualifies as “product hopping” or “patent thickening” regardless of how beneficial the innovation may be.  The legislation applied only to pharmaceutical patents, but that does not stop it from being extended to other research-intensive industries that constantly improve their inventions, like telecommunications and technology.

“Patent thickets” and “product hopping” as used in S. 1416 seemed to predetermine that any new formulation of a drug, including whether administration changes from a needle to a patch, or from two doses to one dose per day, or treats a different disease, is per se anticompetitive.  Even discontinuing an older version of a drug could be considered anticompetitive.

This issue has significant implications for patients and pharmaceutical innovation.  The Senate should consider any changes to the patent process with hearings and regular order.  Furthermore, there are already legal avenues to challenge possible antitrust behavior by any pharmaceutical company.  It is completely unnecessary to grant new and unnecessary powers to the FTC. 

Again, I ask you to oppose S. 1435.  All votes on S. 1435 will be considered for CCAGW’s 2021 Congressional Ratings.

Sincerely,
Thomas A. Schatz