Staffing a presidential administration involves a few very high-profile hires and many, many more that have a real impact despite not drawing much attention. One of those is the director of the U.S. Patent and Trademark Office, and David Dayen recently made the case for why that role matters, and why we should be concerned about the selection process.
Sen. Chris Coons, known as one of President Joe Biden’s top allies in the Senate, has been pushing to shape the choice for the patent role, and that’s bad news. Coons is a longtime backer of stronger patent rights for businesses, and his preferred candidate are people who’ve worked as lawyers for patent owners or as trade group leaders.
What kind of rights would that mean the official overseeing patents and trademarks would be backing? Dayen has some examples. “Alcon, the largest global manufacturer of contact lenses, sued over trademark infringement to block a discount retailer, Allied Vision Group, from selling what Alcon claims are discontinued versions of its products in different packaging,” he reports. “The trademark is not about the lenses, which are FDA-approved, but the packaging; Allied Vision calls it a transparent attempt to force a discount retailer off the market so the 45 million contact lens users in the U.S. must go to Alcon for their needs.”
The packaging. Meanwhile, contact lens-wearing is yet another place we see racial disparities, with Black, and to a lesser extent, Hispanic people underrepresented among contact-wearers. You have to wonder how much that has to do with the cost, given persistent income and wealth inequality.
Pharmaceutical companies also use patents to keep forcing people to pay for their products rather than getting generics, Dayen notes: “Drug companies file multiple patents on the same product, known as ‘patent thickets,’ to extend exclusivity rights and enjoy monopoly profits, leading to overcharging consumers on the order of $315 billion in the U.S. in 2018, according to a study from economist Dean Baker.”
This issue got a burst of attention recently when Rep. Katie Porter once again broke out her whiteboard during a House hearing with pharmaceutical executives, dissecting AbbVie CEO Richard Gonzalez on his company’s expenses for things like stock buybacks and executive pay vs. research and development. Pointing to the “patent thicket” model, Porter said, “You lie to patients when you charge them twice as much for an unimproved drug and then you lie to policymakers when you tell us that R&D justifies those price increases.”
While Coons lobbies Biden to go with a defender of patent owners and longer and stronger patents, Biden is getting pressure from progressive groups to choose someone who will push back against monopolies and weigh consumer interests in decision-making. The current result is that Biden hasn’t nominated anyone to head the U.S. Patent and Trademark Office—which is exactly the right time for the rest of us to start paying attention to this issue.