Another Symbolic Gesture at Year End

This past Thursday the Senate Judiciary Committee voted to advance the so-called Promoting Respecting Economically Vital American Innovation Leadership Act (PREVAIL) to the Senate floor — barely, by a vote of 11-10. The Bill is now eligible for a formal vote, at least in theory. But given the limited legislative calendar left in 2024, coming change to the Senate majority/committee leadership, and the significant opposition to anything related to drug pricing from democratic lawmakers, the Committee vote is little more than a symbolic gesture to create the appearance of traction for 2025.

If this development sounds eerily familiar its because a similar political show was put on last year at this exact same time.

As a reminder, the Bill (here) has been pending in some form or another for at least the past 7 years, and aims to reduce the efficacy of the PTAB. While previously presented as the “Stronger Patents Act” bill sponsors finally realized that the American public (and Congress in general) has little interest in patents. So, the Bill was most recently rebranded as a vehicle to PREVAIL over China. Of course, Chinese companies are not, and have never, filed PTAB challenges in any meaningful number. Successful American companies are far and away the main beneficiaries of the PTAB. But the “because China” narrative has been far more effective in drawing attention.

To get the Bill out of committee some maneuvering was done by Senator Coons (D) to reassure his fellow Democrats that the standing provision would be softened to allow for drug patent challenges by patient groups and generics. But significant democratic concern over drug pricing exists, which has derailed the bill for the past two years.

Another amendment offered by Senator Cruz (R) was rejected that proposed to broaden the so-called opt-out provision that inexplicably allows some patent owners to protect their patents from PTAB review. As a result Senator Cruz was a “no” vote. Given the coming Republican majority, its hard to imagine the Bill getting much (if any) of the remaining 2024 floor time.

As to overall opposition and long term prospects, formidable patient advocacy groups remain strongly opposed to the Bill as undermining fair drug pricing initiatives. And, as always, successful U.S. companies that are routinely targeted by nuisance patent suits also strongly oppose the Bill. Those industries include tech, auto, retail, and hospitality. As such, the current Bill text is likely to be substantially altered if ever passed to law, which remains a longshot.

With the new Congress in 2025, and likely new committee leadership, we will undoubtedly see an 8th year of this bill’s pendency.