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9 June 2022Americas

Senators urge USPTO to curb ‘patent thicket’ abuse

A bipartisan group of six US senators have asked the US Patent and Trademark Office (USPTO) to address ‘patent thickets’, a tactic that pharmaceutical companies allegedly use to stifle competition.

Democratic senators Patrick Leahy, Richard Blumenthal and Amy Klobuchar and Republican senators John Cornyn, Susan Collins and Mike Braun sent the letter yesterday, June 8.

A patent thicket is an overlapping set of patent rights. For example, in the pharmaceutical industry, companies may file many patents on nearly the same invention with minor tweaks to delivery mechanisms, dosages and formulations. This thicket then stifles competition and inflates drug prices.

“This practice impedes generic drugs’ production, hurts competition, and can even extend exclusivity beyond the congressionally mandated patent term,” said the letter, adding that the senators are concerned about the prevalence of continuation and other highly similar patents.

“The Patent Act envisions a single patent per invention, not a large portfolio based on one creation. But continuations now account for almost a quarter of all patent filings. We are concerned this could mean the USPTO is granting multiple patents for one invention, in contravention of the statutory text,” said the letter.

The senators have asked the USPTO’s new director, Kathi Vidal, to consider changes to the office’s regulations and practices to address these problems during examination.

“While we still need consistent avenues to address poor-quality patents after issuance, this is an opportunity to take prompt action at the preissuance stage. We are interested in your views and those of the public,” said the letter.

The letter requested that the USPTO look into specific ideas for curbing the abuse and “take regulatory steps to improve patent quality and eliminate large collections of patents on a single invention.”

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More on this story

Americas
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19 May 2022   The US Patent and Trademark Office has argued against a bid by medical device maker Arthrex, which wants recognition that an ex-interim acting director lacked the power to refuse to review its petition.
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7 July 2022   The US Patent and Trademark Office and Food and Drug Administration have partnered to facilitate access to affordable drugs.