June 27, 2019

Feinstein Speaks on the PACED Act

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today outlined her concerns with the PACED Act and its potential effect on tribal sovereignty.

            Video of her remarks is available here.

            “I’m pleased that we’re talking about health care and drug prices today.

            In addition to supporting the Affordable Care Act against the White House’s Texas lawsuit and supporting protections for pre-existing conditions, keeping drug costs down is vital.

            Americans spend more on prescription drugs than anyone else in the world, and these high costs have consequences.

            A recent Kaiser Family Foundation study found that nearly one out of four Americans—one out of four—either don’t fill a prescription, skip a dose or cut pills in half because they can’t afford their medication.

            Unlike many other countries where drug prices are regulated, we allow drug companies to charge whatever the market will bear. That doesn’t work in a system cloaked in secrecy with so many parties trying to drive up drug prices.

            Three of the bills today are bipartisan and I look forward to voting for all three.

            The PACED Act, however, does not have bipartisan support and I will vote against it.

            I’m concerned this legislation is seeking to address a problem that’s already been solved, and I’m concerned the bill is overly broad and will weaken the sovereign immunity of Native American tribes.

            The PACED Act was intended to respond to Allergan’s tactic of selling the patent for its drug Restasis to the St. Regis Mohawk Tribe and then renting the rights back.

            The tactic to avoid a patent challenge and keep drug prices high is egregious. But it has already been addressed.

            Last year, the Patent Office denied the tribe’s motion to dismiss an administrative review on the basis of immunity. That decision was affirmed by the Federal Circuit, and the Supreme Court later denied a petition to review. That means the decision is the controlling precedent for the Patent Office and the Federal [Circuit].

            The legal process worked, and this bill is not necessary.

            I’m also concerned that the bill is too broad. Under this bill, if a tribally-owned company applied for and secured a patent for a new life-saving medical device, it would not have the same protections as state-owned universities do.

            Not only is this unfair as a matter of principle, there is simply no reason to take this step.

            The impact of passing this legislation would be to weaken sovereign immunity of every Native American tribe.

            The bill is overly broad in that it’s not just limited to pharmaceutical drugs. It would prevent Native American tribes from asserting sovereign immunity in any type of patent infringement proceeding regardless of the patent involved. I’m a no vote.”

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