Cryptic Patent Reform Through the Inflation Reduction Act

46 Pages Posted: 11 Apr 2023 Last revised: 6 Dec 2023

See all articles by Arti K. Rai

Arti K. Rai

Duke University School of Law; Duke Innovation & Entrepreneurship Initiative

Rachel Sachs

Washington University in Saint Louis - School of Law

W. Nicholson Price II

University of Michigan Law School

Date Written: March 27, 2023

Abstract

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (IRA) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to calls for reform. The IRA may just succeed in changing that pattern, at least to some extent, by imposing drug pricing reforms that alter the incentives for evergreening in the first place. In this Article, we lay out the case that the IRA contains implicit reforms to the pharmaceutical patent system. Its details are not straightforward, nor is its implementation, but its effects could nevertheless be major. Drug patent reform, a longtime priority for activists and scholars, may in fact have already happened.

Keywords: patents, drug pricing

JEL Classification: K23,K32

Suggested Citation

Rai, Arti Kaur and Sachs, Rachel and Price II, William Nicholson, Cryptic Patent Reform Through the Inflation Reduction Act (March 27, 2023). Harvard Journal of Law & Technology, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2023-25, U of Michigan Law & Econ Research Paper No. 23-021, U of Michigan Public Law Research Paper No. 23-021, Available at SSRN: https://ssrn.com/abstract=4402378 or http://dx.doi.org/10.2139/ssrn.4402378

Arti Kaur Rai (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Duke Innovation & Entrepreneurship Initiative ( email )

215 Morris St., Suite 300
Durham, NC 27701
United States

Rachel Sachs

Washington University in Saint Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

William Nicholson Price II

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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