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January 24, 2008


Hal Wegner:

Short of white smoke emanating from the Dirksen Senate Office Building, widespread predictions are spreading around Washington, D.C. that Senator Leahy now has slightly more than the 60 votes needed for cloture - the procedural vote to permit rapid Senate passage of Leahy, S. 1145 patent reform legislation. Everyone expects that if cloture succeeds, there will be some changes made in the bill (presumably already agreed upon behind closed doors). Swift House passage of the revised Senate version is expected in press reports.

Hal on AIPLA narcolepsy (AIPLA, an interest group, appearing uninterested):

The Titanic Steams Ahead - the AIPLA Meeting in Arizona: Considering the macroscopic impact of imminent patent reform legislation and the strong opposition to the current bill by the organized patent bar, surprising calm reigns in the dessert of Arizona. The lobbying leaders and officers responsible for dealing with Congress are all here in the dessert, as the leading patent bar group conducts seminars and activities on diverse topics having absolutely no nexus to patent reform legislation… it's as if the icebergs just before the bow remain unseen.

On the political angle and the prospects -

Will Cloture Be Granted? Although the dominant view is that cloture will be granted, skeptics say that the Congressional leadership has nothing to lose by presenting a bill where cloture is denied: This would create political fodder for the coming November election. It remains to be seen what is and what is not reality.

Cloture, of course, is not the end of the matter. The Senate must then formally pass the legislation and the House must pass the identical legislation -- or there may have to be a Conference followed by a ratification of the Conference Report by both the House and Senate.

Conventional Wisdom in the Press: "Right now, senators, inventors, and tech companies are squabbling about how to reform the patent system to encourage more innovation. Some version of the embattled patent-reform legislation is expected to pass next month, and stakeholders are preparing for a gory fight over all sorts of itty-bitty nitty-gritties, such as how to calculate damages for patent infringement." from Slate [January 23, 2007, by Catherine Rampell]

Posted by Patent Hawk at January 24, 2008 4:28 PM | The Patent System


Well, I wrote both of my senators yesterday urging them to vote no, so I'm sure everything will be OK.

Posted by: bierbelly at January 25, 2008 6:35 AM


One of my two Senators is Sherwood Brown, who I didn't vote for and who I'll never vote for. Brown (as a Congressman from Lorain) was the one who raised a squawk over NIH (corrently) not granting march-in-rights under Bayh Dole rightly so) on two drugs (Xalatan and Novicor). Writing a letter to him would likely be pointless as I suspect Brown will vote in favor of this legislation, as it is clearly anti-patent.

Posted by: EG at January 25, 2008 10:23 AM

Thanks to the reader who submitted this!

FDA Week
January 25, 2008
Section: Vol. 14 No. 4
Length: 320 words
Headline: Democrats' Opposition Could Stall Senate Patent Reform Bill


A push by Senate Judiciary Committee Chair Patrick Leahy (D-VT) to get a patent reform bill to the floor after Valentine's Day may face resistance from his own party. Sources say key Democratic Senate Judiciary members are still unhappy with the legislation, on top of several Republican senators who have already placed holds on it.

Staff of Sens. Edward Kennedy (D-MA) and Dianne Feinstein (D-CA) have been negotiating changes to the bill, sources say. Their states have a heavy concentration of research universities and brand drug and biopharmaceutical makers that oppose the bill.

If the Democrats openly withdraw support, it would be especially tough for Leahy to get the 60 votes needed to block a filibuster, sources say.

Kennedy's office did not respond. Feinstein's office stated she has concerns about the bill but declined to elaborate.

The House passed its patent bill in September. The Senate bill (S. 1145) then stalled when Republican senators placed holds on it because they disliked the damages provision, which determines how much money is awarded to patent holders whose patents are infringed. Intense negotiations late last year among stakeholders followed, but they have made little headway, sources say.

Lawmakers moved on to a provision on inequitable conduct, which is the process for challenging patents after they have been granted, and the section of the law that determines in which court patent owners file infringement suits.

Brand drug sources say the inequitable conduct provisions are still too broad and they are worried about the extra time granted for challenging patents.

A Leahy spokesperson says Senate Majority Leader Harry Reid promised the bill "would be one of the first few things to be taken up on the floor." The Senate wants to first tackle the Indian health bill and the foreign intelligence surveillance legislation because lawmakers would debate the patent bill for a long time.

Posted by: Patent Hawk at January 25, 2008 10:45 AM

EG, mine are Biden and Carper. Considering that the only real "industries" left in Delaware are chemical and pharmaceutical, I would hope they'd see the light...if they decide to first open their eyes. My understanding is that Carper is an engineer! If they vote "for", I'll certainly castigate them the next time I see them...which in Delaware is almost a yearly certainty.

Posted by: bierbelly at January 25, 2008 10:58 AM

"Biden and Carper. Considering that the only real "industries" left in Delaware are chemical and pharmaceutical, I would hope they'd see the light..."

They'd better see the light !

Delaware is a legal home to miriads of corporations, from the largest multinationals to patent-holding shells...
The venue reform alone can flood Delaware Court with patent lawsuits (while putting Texas out of business)
The damage provision adds weeks if not months to the duration of each patent lawsuit... with all the expert testimonies etc.

Good for hotel business in downtown Wilmington though...

Posted by: angry dude at January 25, 2008 8:27 PM

Hal Wegner on Saturday morning:

Cloture Votes, Blowing Smoke or Substance: Experts from within the Beltway have signaled that the legislation is far, far from being a done deal, that the proponents of S. 1145 may well be several votes short of the 60 needed for cloture.

Deckchairs on the Titanic: In the meantime, leaders of the organized patent bar continue their midwinter meeting in Arizona with nary a plenary session on the legislative crisis bubbling to the top in Washington, D.C. (as below). The elephant looms outside the tent.


Posted by: Patent Hawk at January 26, 2008 10:23 AM