Who's winning and who's losing at IPR so far
A bipartisan backlash against the pricing of specialty drugs has eroded the biopharma industry's political support, leading members of Congress to question whether efforts to exempt drug patents from the inter partes review system would protect innovation or simply prop up profits.
While BIO and PhRMA may achieve an IPR carve-out, recent decisions by the U.S. Patent and Trademark Office suggest that retention of the IPR process would not be an unmitigated disaster for biopharma innovators.
Biopharma companies have to contend with two separate types of risks from IPR: investors using the process to manipulate stock prices, and drug companies seeking to accelerate or facilitate competition, for example from generic or biosimilar drugs.
On the valuation front, the first few hedge fund IPR petitions did send stocks down, but reactions to subsequent IPRs have been muted.
And on the competition front, IPR challenges have had little success in knocking out drug patents in the small number of cases that have gone to trial. Even the most adamant opponents of the process say it is unlikely to completely clear the path for competitors.
The IPR process is, however, clearly changing the IP landscape, creating new risks for patent holders and opportunities to clear paths for competition.
Even as BIO and PhRMA have launched a vigorous battle to insulate biopharma from IPR, individual innovator companies - along with manufacturers of biosimilar and generic drugs - are increasingly turning to the procedure as a relatively cheap, fast alternative to traditional litigation (see "Parting Ways," page 7).
The generic pharmaceutical industry, health insurance industry, pharmaceutical benefit managers, consumer groups and some conservative Republican activists are fighting to retain IPRs on drug patents, arguing that the system is working precisely as Congress intended when it created the system in the 2011 America Invents Act.
BIO is enlisting patients in its fight against IPR, coordinating sign-ons to a letter from patient groups to Congress supporting the drug industry's IPR exemption request (see "Enlisting Patients," page 3).
BIO and PhRMA have informed committees in the House and Senate that they will oppose pending patent reform bills - the Innovation Act (H.R.