Patents And Regulatory Exclusivities On Inhalers For Asthma And COPD, 1986-2020

Patents and regulatory exclusivities on FDA-approved insulin products: A longitudinal database study, 1986-2019

BACKGROUND

Insulin is the primary treatment for type 1 and some type 2 diabetes but remains costly in the United States, even though it was discovered more than a century ago. High prices can lead to nonadherence and are often sustained by patents and regulatory exclusivities that limit competition on brand-name products. We sought to examine how manufacturers have used patents and regulatory exclusivities on insulin products approved from 1986 to 2019 to extend periods of market exclusivity.

METHODS AND FINDINGS

We used the publicly available Food and Drug Administration (FDA) Approved Drug Products with Therapeutic Equivalence Evaluations (Orange Book) to identify all approved biosynthetic insulin products. Individual products approved under the same New Drug Application (NDA)-e.g., a vial and pen-were considered as separate products for the purposes of analysis. We recorded all patents and regulatory exclusivities listed in the Orange Book on each product and used Google Patents to extract the timing of patent application and whether patents were obtained on delivery devices or others aspects of the product. The primary outcome was the duration of expected protection, which was determined by subtracting the FDA approval date for each product from its last-to-expire patent or regulatory exclusivity (whichever occurred later). We performed a secondary analysis that considered overall protection on insulin lines-defined as groups of products approved under the same NDA with the same active ingredients manufactured by the same company. We also examined competition from follow-on insulin products-defined as products approved with the same active ingredients as originators but manufactured by different companies (approved via a specific drug approval pathway under section 505(b)(2) of the Food, Drug, and Cosmetic Act). During the study period, the FDA approved 56 individual products across 25 different insulin lines and 5 follow-ons across 3 different insulin lines. Thirty-three (59%) of the 56 products were drug-device combinations. Manufacturers of 9 products approved during the study period obtained patents filed after FDA approval that extended their duration of expected protection (by a median of 6 years). Approximately 63% of all patents on drug-device combinations approved during the study period were related to delivery devices. The median duration of expected protection on insulin products was 16.0 years, and the median protection on insulin lines was 17.6 years. An important limitation of our analysis is that manufacturers may continue to add patents on existing insulin products while competitors may challenge patents; therefore, periods of protection may change over time.

CONCLUSIONS

Among several strategies that insulin manufacturers have employed to extend periods of market exclusivity on brand-name insulin products are filing patents after FDA approval and obtaining a large number of patents on delivery devices. Policy reforms are needed to promote timely competition in the pharmaceutical market and ensure that patients have access to low-cost drugs.

Patents and Regulatory Exclusivities on GLP-1 Receptor Agonists

Importance

Glucagon-like peptide 1 (GLP-1) receptor agonists were first approved for the treatment of type 2 diabetes in 2005. Demand for these drugs has increased rapidly in recent years, as indications have expanded, but they remain expensive.

Objective

To analyze how manufacturers of brand-name GLP-1 receptor agonists have used the patent and regulatory systems to extend periods of market exclusivity.

Evidence Review

The annual US Food and Drug Administration's (FDA) Approved Drug Products With Therapeutic Equivalence Evaluations was used to identify GLP-1 receptor agonists approved from 2005 to 2021 and to record patents and nonpatent statutory exclusivities listed for each product. Google Patents was used to extract additional data on patents, including whether each was obtained on the delivery device or another aspect of the product. The primary outcome was the duration of expected protection from generic competition, defined as the time elapsed from FDA approval until expiration of the last-to-expire patent or regulatory exclusivity.

Findings

On the 10 GLP-1 receptor agonists included in the cohort, drug manufacturers listed with the FDA a median of 19.5 patents (IQR, 9.0-25.8) per product, including a median of 17 patents (IQR, 8.3-22.8) filed before FDA approval and 1.5 (IQR, 0-2.8) filed after FDA approval. Fifty-four percent of all patents listed on GLP-1 receptor agonists were on the delivery devices rather than active ingredients. Manufacturers augmented patent protection with a median of 2 regulatory exclusivities (IQR, 0-3) obtained at approval and 1 (IQR, 0.3-4.3) added after approval. The median total duration of expected protection after FDA approval, when accounting for both preapproval and postapproval patents and regulatory exclusivities, was 18.3 years (IQR, 16.0-19.4). No generic firm has successfully challenged patents on GLP-1 receptor agonists to gain FDA approval.

Conclusions and Relevance

Patent and regulatory reform is needed to ensure timely generic entry of GLP-1 receptor agonists to the market.

Comparative Effectiveness and Safety of Generic Versus Brand-Name Fluticasone-Salmeterol to Treat Chronic Obstructive Pulmonary Disease

BACKGROUND

In 2019, the U.S. Food and Drug Administration (FDA) approved the first generic maintenance inhaler for asthma and chronic obstructive pulmonary disease (COPD). The inhaler, Wixela Inhub (fluticasone-salmeterol; Viatris), is a substitutable version of the dry powder inhaler Advair Diskus (fluticasone-salmeterol; GlaxoSmithKline). When approving complex generic products like inhalers, the FDA applies a special "weight-of-evidence" approach. In this case, manufacturers were required to perform a randomized controlled trial in patients with asthma but not COPD, although the product received approval for both indications.

OBJECTIVE

To compare the effectiveness and safety of generic (Wixela Inhub) and brand-name (Advair Diskus) fluticasone-salmeterol among patients with COPD treated in routine care.

DESIGN

A 1:1 propensity score-matched cohort study.

SETTING

A large, longitudinal health care database.

PATIENTS

Adults older than 40 years with a diagnosis of COPD.

MEASUREMENTS

Incidence of first moderate or severe COPD exacerbation (effectiveness outcome) and incidence of first pneumonia hospitalization (safety outcome) in the 365 days after cohort entry.

RESULTS

Among 45 369 patients (27 305 Advair Diskus users and 18 064 Wixela Inhub users), 10 012 matched pairs were identified for the primary analysis. Compared with Advair Diskus use, Wixela Inhub use was associated with a nearly identical incidence of first moderate or severe COPD exacerbation (hazard ratio [HR], 0.97 [95% CI, 0.90 to 1.04]) and first pneumonia hospitalization (HR, 0.99 [CI, 0.86 to 1.15]).

LIMITATIONS

Follow-up times were short, reflecting real-world clinical practice. The possibility of residual confounding cannot be completely excluded.

CONCLUSION

Use of generic and brand-name fluticasone-salmeterol was associated with similar outcomes among patients with COPD treated in routine practice.

PRIMARY FUNDING SOURCE

National Heart, Lung, and Blood Institute.

Patenting Strategies on Inhaler Delivery Devices

BACKGROUND

Patients with asthma and COPD rely on inhalers to control symptoms. Yet, these products remain expensive, in part because brand-name manufacturers have obtained numerous patents on inhalers, including on their delivery devices. Recent antitrust litigation has raised questions about the boundaries of listing device patents with the US Food and Drug Administration (FDA), particularly when patents do not claim any active ingredients.

RESEARCH QUESTION

How have manufacturers relied on device patents to preserve market exclusivity on brand-name inhalers?

STUDY DESIGN AND METHODS

We identified patents on brand-name inhalers approved for asthma and COPD between 1986 and 2020 using the FDA's Approved Drug Products with Therapeutic Equivalence Evaluations (Orange Book). We extracted information about patents from LexisNexis TotalPatent One and Google Patents and searched device patents for mention of active ingredients or other prespecified features linking the patent to the relevant drug. For each inhaler, we determined the duration of protection added by device patents.

RESULTS

The FDA approved 53 brand-name inhalers for asthma and COPD from 1986 through 2020, 39 of which had at least one device patent. One hundred thirty-seven distinct device patents were in the final cohort, representing 49% of all patents listed on inhalers. Seventy-seven percent of device patents made no mention of active ingredients or their molecular structures, and 72% made no mention of any relevant prespecified feature connecting the device patent to the drug product. For the 39 brand-name inhalers with one or more device patents listed in the Orange Book, device patents extended the duration of market protection by a median of 5.5 years (interquartile range, 0.0-10.5 years) beyond the last-to-expire nondevice patent.

INTERPRETATION

Patent and regulatory reform is needed to promote generic competition and to ensure that patients with asthma and COPD have access to affordable medications.

Patent Challenges And Litigation On Inhalers For Asthma And COPD

Between 1986 and 2020 the Food and Drug Administration (FDA) approved fifty-three brand-name inhalers for asthma and chronic obstructive pulmonary disease (COPD), but by the end of 2022 only three of those inhalers faced independent generic competition. Manufacturers of brand-name inhalers have created long periods of market exclusivity by obtaining multiple patents, many on the delivery devices rather than the active ingredients, and by introducing new devices that contain old active ingredients. Limited generic competition for inhalers has raised questions about whether the Drug Price Competition and Patent Term Restoration Act of 1984, also known as the Hatch-Waxman Act, for challenging patents is adequately facilitating the entry of complex generic drug-device combinations. For the fifty-three brand-name inhalers approved during the period 1986-2020, generic manufacturers filed challenges authorized by the Hatch-Waxman Act, which are known as paragraph IV certifications, on only seven products (13 percent). The median time from FDA approval to first paragraph IV certification was fourteen years. Paragraph IV certifications resulted in approved generics for only two products, each of which experienced fifteen years of market exclusivity before generic approval. Reform of the generic drug approval system is critical to ensuring the timely availability of competitive markets for generic drug-device combinations such as inhalers.

Health Care Spending on Respiratory Diseases in the United States, 1996-2016

Rationale: Respiratory conditions account for a large proportion of health care spending in the United States. A full characterization of spending across multiple conditions and over time has not been performed. Objectives: To estimate health care spending in the United States for 11 respiratory conditions from 1996 to 2016, providing detailed trends and an evaluation of factors associated with spending growth. Methods: We extracted data from the Institute of Health Metrics and Evaluation's Disease Expenditure Project Database, producing annual estimates in spending for 38 age and sex groups, 7 types of care, and 3 payer types. We performed a decomposition analysis to estimate the change in spending associated with changes in each of five factors (population growth, population aging, disease prevalence, service usage, and service price and intensity). Measurements and Main Results: Total spending across all respiratory conditions in 2016 was $170.8 billion (95% confidence interval [CI], $164.2-179.2 billion), increasing by $71.7 billion (95% CI, $63.2-80.8 billion) from 1996. The respiratory conditions with the highest spending in 2016 were asthma and chronic obstructive pulmonary disease, contributing $35.5 billion (95% CI, $32.4-38.2 billion) and $34.3 billion (95% CI, $31.5-37.3 billion), respectively. Increasing service price and intensity were associated with 81.4% (95% CI, 70.3-93.0%) growth from 1996 to 2016. Conclusions: U.S. spending on respiratory conditions is high, particularly for chronic conditions like asthma and chronic obstructive pulmonary disease. Our findings suggest that service price and intensity, particularly for pharmaceuticals, should be a key focus of attention for policymakers seeking to reduce health care spending growth.

Manufacturer Revenue on Inhalers After Expiration of Primary Patents, 2000-2021

This study quantifies the revenue earned on all brand-name inhalers approved by the US Food and Drug Administration from 2000 to 2021 and compared earnings before and after expiration of primary patents on these products.

Brand-name market exclusivity for nebulizer therapy to treat asthma and COPD

Nebulizer therapy is a cornerstone treatment for asthma and chronic obstructive pulmonary disease (COPD). We collected and analyzed all patents and regulatory exclusivities on brand-name nebulizer solutions approved for asthma and COPD from 1986–2020, quantified periods of protection from generic competition, and compared the patenting strategies employed by manufacturers of nebulizer versus inhaler therapy. The median duration of expected protection from generic competition for brand-name nebulizer solutions (n=13) was 7 years (after subtracting time lost to early generic entry), compared to 14 years for inhalers (n=53). Through the end of 2020, brand-name nebulizers faced generic competition for 62% of all follow-up time compared to 0.5% for inhalers. Unlike inhaler manufacturers, which relied heavily on device patents to build extensive patent thickets, manufacturers of nebulizer solutions listed fewer patents overall and relied more on non-device patents. Regulatory reform is critical to help ensure that patients have access to affordable inhaled medications.