Patent Law

Paying for Garbage

By Gary Odom and Jordan Kuhn

The New York Times reports $4.3 million spent in the past 15 months lobbying at the wounded Patent Act. The anti-patent Coalition for Patent Fairness alone forked out $2.5 million, lining the pockets of Sen. Leahy & Sen. Hatch. Pro-patent rival Coalition for 21st Century Patent Reform spent $1.8 million.

The NYT article focused on inequitable conduct, which patent-holding big pharma would like eviscerated. Robert A. Armitage of Eli Lilly on inequitable conduct: "This is like imposing the death penalty for relatively minor acts of misconduct."

Generic manufacturers have a different take. Debra S. Barrett of Teva thinks that the proposed change in the inequitable conduct standard "would make it easier for them to cheat and get away with it, easier for them to defend their patents and more difficult for us to get generic products onto the market in a timely way."

The CAFC has affirmed inequitable conduct finding in at least 40 cases in the past 15 years, 14 for drug or health care product patent holders. The number is unknown for district court rulings not appealed.

Robert D. Budens, president of POPA, the Patent Office Professional Association, the patent examiners union, cuts to the bone: "If Congress eliminated or reduced the penalty for inequitable conduct, applicants would no longer have a reason to disclose all the information they are aware of."

In a rare instance of innocent until proven guilty, though perhaps vexatious to the accused, groundless charges of inequitable conduct get no traction in litigation.

Corruption is human nature. Humans are genetically predisposed to serve their own self-interest at others expense. Infants mewl for attention. Two year olds intrinsically see what they can get away with. Flush CFOs backdate stock options. Manufacturers trash the environment to deliver low-cost goods, incurring what economists coyly term "externalities." All infantile, all profitable endeavors. As Eli Lilly would characterize it, "relatively minor acts of misconduct."

Full post as published by The Patent Prospector on April 30, 2008 (boomark / email).