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A Big Miss on Drug Prices

(THE AMERICAN PROSPECT) David Dayen, March 26, 2023

President Biden’s NIH rejects a petition to seize the patent of an unaffordable prescription drug.

The Biden administration has seen firsthand in the past few weeks the benefits of using statutory power to bring down prescription drug costs. With Novo Nordisk and Sanofi following the lead of Eli Lilly and announcing their intent to slash the list price of their insulin medications by 65 percent or more, practically all diabetes patients will see relief, mostly thanks to a change in Medicaid rebates stuck into the American Rescue Plan. It upended the usual laissez-faire attitude about prescription price-gouging, and showed that the government, as a major medication buyer, can intervene to lower costs.

Which is why it’s so disappointing that a separate effort to take action on an even wider array of pharmaceuticals has fizzled. The Department of Health and Human Services (HHS) and the National Institutes of Health (NIH) have rejected a petition from prostate cancer patients to use a provision of the Bayh-Dole Act of 1980 to seize the patents of a high-cost drug because of its high price.

The tactic, known as “march-in rights,” was a core pillar of the Day One Agenda. The Bayh-Dole Act specifies how the government awards patents to drugs developed with publicly funded research (a significant number). But if the feds find that the drug is not being made accessible on “reasonable terms,” they can march in and extinguish the patent, allowing generic competitors to market their own versions.

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