Bench Memos

The ‘Dog Ate My Homework Act’ Is an Earmark

The Wall Street Journal has an excellent editorial today explaining how a law firm and a pharmaceutical company have taken it upon themselves to make a national problem out of their billion-dollar mistake. The drama started in 2001 when WilmerHale missed the deadline to file for an extension of MedCo’s patent on Angiomax, the company’s cash cow. Because of the blunder, the Patent and Trademark Office denied the patent extension, costing MedCo hundreds of millions of dollars.

Since then, in addition to litigation seeking reprieve (discussed in the WSJ piece), MedCo and WilmerHale have spent huge amounts of time, money, and effort lobbying Congress to pass legislation that would retroactively change the deadlines to make MedCo’s late filing valid. Given the amount of money and the reputations that are at stake, I am not surprised that MedCo and WilmerHale would use their resources to force-feed Congress the “Dog Ate My Homework Act.” What’s harder to understand is why Congress has been playing along, wasting staff and member resources on what amounts to an earmark for a law firm and its client. 

The most recent version of the bill was tacked onto the America Invests Act — also known as the patent bill — in June and was finally passed by the House with the help of shenanigans by Rep. Jesse Jackson Jr. (D., Ill.). It is currently on the Senate calendar.

Supporters of the bill claim it creates greater uniformity among Patent Office deadlines. But, as the Journal notes, “There was never a problem to fix here. In a 2006 House Judiciary hearing, the Patent Office noted that of 700 patent applications since 1984, only four had missed the 60-day deadline.” 

The rule of law is the law of rules, to quote Justice Scalia, and you’re going to have a tough time persuading me that the highly paid lawyers representing MedCo were not familiar with the deadlines that applied to their client’s application. This long-running congressional calamity could have been avoided, and it ought to be put to rest once and for all.  

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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