GAO on combo product patents: Stakeholders split on need for Orange Book tweaks
The Government Accountability Office (GAO) late Thursday released a report evaluating whether Orange Book patent listings related to drug-device combination products might be hampering generic competition, with stakeholders offering differing views on whether the FDA should do more or stay out of the Orange Book listings of certain types of patents.
The GAO’s report didn’t turn up too many answers, as stakeholders interviewed by the office offered a wide variety of inclusion and exclusion criteria on which device-related patents should be listed in the Orange Book. Both sides made their case that more comprehensive listings could help generic firms, or how excluding more of these patents could lessen the amount of time it takes for the generic products to hit the market.
FDA officials, meanwhile, told GAO “they do not have enough information to assess how device-related patent listings affect the entry of generic drug-device combination products into the market,” adding:
They noted that FDA does not separately track device-related patents listed in the Orange Book, and brand name sponsors are not required to submit information to FDA identifying which patents are related to the device part of a drug-device combination product. In addition, they noted that FDA’s role in overseeing the Orange Book does not include analyzing device-related patent listings.
The situation is particularly bad with inhalers. Recent research showed that among the 53 inhalers approved to treat asthma and COPD from 1986 to 2020, only four brand-name products had generic versions.
Meanwhile, seven stakeholders (two generic drug sponsors, two national associations, two experts, and an advocacy organization) told GAO that generic drug companies have been confused or unnecessarily delayed in commercializing their drugs “due to overly broad or ambiguous use codes … Generic drug sponsors may therefore be uncertain of their ability to submit an application with a skinny label.”
Generic drug companies often deploy the use of so-called skinny labels to carve around patents on the branded product that are active, but still bring a generic drug to market for some of the labeled indications.
FDA officials “told us that ambiguous and overly broad use codes in the Orange Book may delay the entry of generic products into the market,” GAO added.
And while the agency said it’s establishing a multidisciplinary workgroup to review Orange Book patent listings, the GAO noted that as of December 2022, FDA officials “had not determined which specific issues the workgroup may examine. In addition, FDA officials said competing priorities and resource challenges had prevented them from developing timelines for establishing the workgroup and identifying the workgroup’s members, but noted that they hoped to make these decisions soon.”