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David Mittleman
David Mittleman
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New Patent Bill a “Get Out Of Jail Free” Card For a Major Law Firm

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A proposed bill now before the U.S. Senate is being described by some observers as a “bailout” of a powerful drug company and its prestigious law firm. The bill would change a provision of the current law governing the amount of time drug companies have to apply for patent extensions, which protect the manufacturers from generic competition for several years and preserve millions of dollars in profits.

The controversy surrounds drug maker Medicines Company and its law firm, WilmerHale. WilmerHale missed the patent extension deadline for the anticoagulant Angiomax by one or two days, and as a result the U.S. Patent and Trademark Office denied the additional protection. This opened the door for other manufactures to put generic versions of the product on the market, potentially costing Medicines Company hundreds of millions of dollars. WilmerHale, for its part, faces a legal malpractice claim of $214 million for its failure to timely file for the extension.

All of this would change, however, if the new provision were passed. Medicines Company would retain its exclusive rights, and WilmerHale would be off the hook for the malpractice claim. This provision, which appears to have the sole purpose of protecting these two companies, is being derisively referred to as the “Dog Ate My Homework Act” for essentially ratifying an otherwise flimsy excuse. Not surprisingly, Medicines Company and WilmerHale (whose representative clients list is practically a “Who’s Who” of Fortune 500 companies) have been vigorously lobbying for passage of the bill.

Backlash against the bailout provision has mounted recently, especially as the public at large continues to face tough economic times while corporations find financial relief from lawmakers. In a vote yesterday evening, the amendment to strike the provision narrowly failed.