Letter opposing the Kohl Amendment to the Health Care Bill

December 10, 2009

TO THE MEMBERS OF THE UNITED STATES SENATE:

The U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector and region, strongly opposes an amendment expected to be offered to the health care bill by Sen. Kohl, which would eliminate the ability of pharmaceutical companies to settle costly and uncertain patent litigation.

The Kohl amendment would not only make it more difficult to resolve patent litigation between pharmaceutical companies but would also delay market entry of generics, thereby resulting in a substantial loss in savings for consumers. In addition, absent a settlement, pharmaceutical patent litigation would turn into an all or nothing proposition for litigants. For example, forcing a generic company to take a complex patent challenge all the way to a court decision would risk keeping the competing generic medicine off the market entirely until patent expiration. Such a result would ultimately increase the cost of pharmaceutical products.

The current system of judicial review, and FTC and DOJ oversight, has proven to protect consumers while allowing generic medicines to reach the consumer sooner. Any legislation to reform drug patent settlements should not create a bright-line prohibition, and should instead preserve the Hatch-Waxman incentive to challenge patents and ensure consumers will continue to have access to generic drugs. The Kohl amendment undermines the intent of Hatch-Waxman and would have a chilling effect on patent challenges.

For all of these reasons, the Chamber strongly urges you to oppose the Kohl Amendment.

Sincerely,

R. Bruce Josten