Drug Company to Congress: The ‘Dog Ate My Homework’
Just about anyone who has ever been a kid in school recalls trying to make up an excuse believable enough to avoid being punished for not turning in your homework on time. An old favorite is “the dog ate my homework.”
A decade ago WilmerHale, a powerful law firm, missed a key deadline far more important than homework. It mistakenly filed a patent extension for its drug company client one day after the 60-day deadline. Rather than being penalized one letter grade like in grade school, the patent extension was rejected by the Patent and Trademark Office, causing the client to lose patent protection five years early for a drug it owned. The drug company sued its law firm, which agreed to cough up $214 million if it cannot somehow reverse the Patent Office’s extension rejection. The powerful law firm and its client have been lobbying Congress to change the law ever since.
In an amendment that is derisively being called “The Dog Ate My Homework Act,” the House agreed to change the way the 60-day patent extension filing deadline is calculated – just to benefit this one powerful law firm and its client. The Senate takes up the debate this week. If this amendment passes, consumers will pay more and have slower access to generic drugs. Let’s hope Congress leaves the law intact rather than demonstrate that rules can be broken when they are inconvenient to powerful lobbying interests.
The Wall Street Journal also covers the topic here.
This mistake cost the drug maker more than $1 billion. The law firm and its malpractice insurer will have to chip in $214 million. I wonder who got fired for that blunder?
It is rather difficult to understand how this could happen when the client has hundreds of millions in sales at stake and the law firm was billion millions in legal fees.
I completely understand how this could happen. Patent rules are obtuse and complex. Even small firms hire law firms to deal with them, and those firms cost a fortune. As this story suggests, even they get things wrong.
The Patent Office has significant problems, including inept examiners who award patents on processes that violate physical laws and examiners who are unable to understand the innovation being proposed and refuse to issue patents on the basis of their misunderstanding. Good luck with the appeals process, if you can afford it.
It costs a ton of money to just to maintain a patent once it is awarded. Heaven help you if you have to defend it.
The whole process is such a mess that it is not uncommon for companies to choose not to patent discoveries. This avoids making their discoveries public knowledge and is a heck of a lot less expensive.
Urgh. I can’t imagine being the guy in charge of that filing! What a rough day at the office!