Timothy Carney
2008-03-07 08:00:00.0
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WASHINGTON -

Reform” on Capitol Hill and in the federal bureaucracy often means changing the law or a regulation to benefit certain well-connected parties -- usually those with the best lobbyists and lawyers. In Congress’ current push for “patent reform,” the lawyers, and not merely the clients they represent, are among the top beneficiaries of the legislation.

Last week this column explained how a provision sponsored by Sen. Edward Kennedy, D-Mass., would benefit one drugmaker, MDCO, the Medicines Company. The drugmaker has spent more than $4.7 million lobbying for the proposal, which if adopted, would appear in the Patent Reform Act now before Congress. The Kennedy provision would enable MDCO to extend its patent 54 months past its 2010 expiration date. While the Kennedy measure could be seen as a gift to MDCO, it could also be considered a lawyer bailout.

MDCO’s problems began in 2001 when the company’s patent lawyers at the Fish & Neave firm were a day late on an application to extend the drugmaker’s patent on Angiomax, an anti-coagulant heart medication.

In the previous Congress, MDCO launched a huge lobbying blitz to change the law so that the U.S. Patent and Trademark Office could accept late applications. In a 2006 hearing on this proposed legislation, Rep. Lamar Smith, R-Texas, then-chairman of the House Judiciary Committee’s subcommittee on intellectual property, asked MDCO Chief Executive Officer Clive Meanwell a fair question:

“Why haven’t you simply ... filed a malpractice suit?”

This is a good question, and Meanwell dodged it by saying: “A lawsuit won’t solve this problem. We will still be left with the underlying pothole in the law.” Meanwell argued that inflexible PTO deadlines were “a real policy problem.” He added, “at this point, we would rather come here and debate the merits of fixing this hole in the law than suing our law firm.”

Is it a real policy problem? PTO Director John Dudas that same day testified that the current law was only a “problem” for one company — MDCO. Well, actually, it was also apparently a problem for Fish & Neave.

When I described Fish & Neave’s Angiomax misstep to patent lawyer Ken Cuccinnelli, partner at the Fairfax firm Cuccinelli & Day and a Virginia state senator, Cuccinelli said that by my account, “Fish & Neave is totally exposed.”

This picture makes it clear that MDCO is not the only entity that stands to benefit from this little tweak in patent law — Fish & Neave does, too. While MDCO stands to lose at least $500 million from its patent expiring early, the company has not yet lost a dime.

That means Fish & Neave’s mistake has not yet caused significant harm to MDCO. To use a baseball analogy, Fish & Neave’s error has put crucial base runners in scoring position, and now they are hoping MDCO’s lobbyists can get the team out of the inning with no harm done.

While MDCO couldn’t hit Fish & Neave for $500 million — the firm’s malpractice insurance policy surely will cover only much smaller payments — the possible exposure of Fish & Neave introduces an interesting angle that ties back to the measure’s Senate champion, Ted Kennedy.

Kennedy usually portrays drug companies as the bad guys and pushes measures he claims will drive down the costs faced by patients. Keeping generic versions of Angiomax off the market for 54 additional months certainly won’t keep prices down. In this case, then, Kennedy is helping a drugmaker and keeping prices high, in the name of basic fairness.

But Kennedy has ties to Fish & Neave through the prominent firm that acquired the patent boutique recently. Ropes & Gray, which describes itself as “one of Boston’s most venerable firms,” merged with Fish & Neave in 2005, and thus inherited the Angiomax problem.

Ropes & Gray’s association with Kennedy goes way back: The firm represented the senator nearly four decades ago when the car he was driving went off a bridge in Chappaquiddick, Mass., killing Mary Jo Kopechne.

The Chappaquiddick-Ropes & Gray-MDCO connection isn’t likely a quid pro quo (Kennedy’s Chappaquiddick attorney, Ropes & Gray’s Edward Hanify, died in 2001). It does, however, highlight the importance and utility of being well-connected in this town.

Examiner columnist Timothy P. Carney is senior reporter for the Evans-Novak Political Report. His Examiner column appears on Fridays.