Sessions, Coburn: Patent reform provision ‘illustration of Washington at its worst’

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Alabama Republican Sen. Jeff Sessions and Oklahoma Republican Sen. Tom Coburn are pushing to strip technical language — that would act as a bailout for a large law firm and a pharmaceutical manufacturer — out of the patent reform bill currently pending in the Senate.

In a letter sent to their Senate colleagues Wednesday, Sessions and Coburn explained that Section 37 of the “Leahy-Smith America Invents Act” would act as a special interest earmark for the law firm WilmerHale and the pharmaceutical manufacturer The Medicines Company (MedCo).

“This provision — dubbed the ‘Dog Ate My Homework’ act by Citizens Against Government Waste — first surfaced about a decade ago when the prestigious now known as WilmerHale missed a routine deadline for submitting to the Patent and Trademark Office (PTO) a patent term extension (PTE) application on behalf of its client The Medicines Company for its drug Angiomax,” they wrote. “The PTO denied the application concluding it was not filed in a timely manner. Ever since then, both Medco and WilmerHale have spent millions lobbying Congress to change the rules and fix their mistake.”

Authored by Michigan Democratic Rep. John Conyers, Section 37 appears innocuous on its face — after all, it only deals with the deadline requirements for patents. However, it would singularly benefit Medco and WilmerHale — which are facing a cost of $214 million for their aforementioned deadline misstep — while costing taxpayers millions, according to Coburn and Sessions.

“The CBO scored a similar provision contained in the Patent Reform Act of 2007, stating a delay in a generic drug coming to market would cost the federal government $20 million and U.S. hospitals and consumers $1 billion,” they wrote. “The stakes are high for Members of Congress. Although the Medco fix does not obligate taxpayer money to be spent on a specific project, by virtue of its narrow scope it falls within the broad definition of an earmark and a classic example of Congress taking pains to assist powerful interests.”

The senators further pointed out that there is litigation pending involving Medco and WlimerHale, and that the provision does not address a real problem. They argue that if 99.5 percent of patent holders have been able to apply for patent extensions properly, legislation is not needed to for the .5 percent that did not.

“The question before the Senate is a fairly straightforward one: Should we provide special treatment to a big law firm that we would not afford a constituent who missed a routine deadline? We submit the answer to that question it ‘no,’” they concluded.

Senate Majority Leader Harry Reid announced Wednesday that the Senate will hold a final vote on the bill Thursday.

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