US lawmakers blast patent thickets in letter to USPTO director

Members from both sides of the US House of Representatives wrote to USPTO director Kathi Vidal on Friday, March 24, expressing their concern about “patent thicketing.”

Five members – three Republicans and two Democrats – urged Vidal to consider implementing the proposed policies outlined in her October 4 2022 request for comment.

Vidal’s suggested that parties seeking to overcome rejections based on obvious variations of prior claims should stipulate that those claims aren’t patentably distinct.

Such admission would ensure that if one of the duplicates was invalidated, courts could consider that fact as evidence against the others, the members claimed.

“Branded manufacturers will often seek numerous patents on a single feature of a drug, creating a dense web, or thicket, of patents that delay generic and biosimilar competition,” the letter said.

“While some may question the quality of these patents, the high cost, uncertainty, and lengthy process for challenging them, makes it practically impossible to sort the good from the bad.”

The letter added that patent thickets, the process of seeking multiple patents on a single feature of drug, protected older drugs from competition, which costs the US government and taxpayers more money and hinders patients’ options for cost-effective treatment.

The signees were Republican Jodey Arrington, Michael Burgess and Darrell Issa, and Democrats Lloyd Doggett and Annie Kuster.

Vidal’s October 2022 request for comment came about after President Joe Biden issued an executive order to promote access to drugs in 2021 and after six senators raised concerns about patent thickets in a June 2022 letter to the USPTO.