By Donald Zuhn –-

Last week, we reported on nine letters that were sent to the Senators of eight states between December 12, 2007 and January 29, 2008 by a collection of universities, businesses, and organizations.  In the letters, the signatories contend that the Senate’s patent reform bill will harm innovation and result in the loss of American jobs.  While the signatories represent a wide array of technologies, we were specifically interested in the number and identity of biotech and pharma companies that had signed the letters.  To this end, we determined that of the 211 different signatories, 58 are biotech or pharmaceutical companies.  In view of the common perception that patent reform will have a disparate impact on the biotech/pharma industry, it is somewhat surprising — but perhaps pleasantly so — that only 27.5% of the signatories are biotech and pharma companies.  The biotech and pharma signatories include (with an indication of the letters each company signed; see key below):

• Abbott – C, D, H
• Advanced Cancer Therapeutics (ACT) – E
• Agennix, Inc. – D, H
• Allergan – D, H
• AllTranz – E
• Altea Therapeutics – A
• AM Biotechnologies, LLC – D, H
• Amgen – E
• ApoImmune, Inc. – E
• AptaMed, Inc. – D, H
• AstraZeneca – D, G, H
• Asuragen – D, H
• BioNumerik Pharmaceuticals, Inc. – D, H
• BioTHER Corporation – D, H
• Cellumen, Inc. – G
• Centocor, Inc. – G
• Coldstream Laboratories, Inc. – E
• Dako Colorado, Inc. – B
• Demegen, Inc. – G
• Emagin Therapeutics – E
• Endovasc, Inc. – D, H
• Four Tigers – E
• GlaxoSmithKline – C, G, I
• INCELL, Inc. – D, H
• Integral Molecular – G
• Johnson & Johnson – G
• Knopp Neurosciences – G
• Leuchemix – E
• Lexicon Pharmaceuticals – D, H
• M.D. Anderson Cancer Center – D, H
• Merck – D, H, G
• Nano-Mite Technologies, LLC – E
• Naprogenix, Inc. – E
• Neurobiotex, Inc. – D, H
• Niadyne Development, Inc. – C
• Novera Drugs, LLC – E
• Novomedics – D, H
• Occular Transplantation, LLC – E
• Oraceuticals, Inc. – E
• Orthopeutics LP – D, H
• Pfizer – I
• PLx Pharma, Inc. – D, H
• Pradama, Inc. – E
• Precision Therapeutics, Inc. – G
• Procter & Gamble – A, G, I
• ProteoPure, Inc. – G
• RhinoCyte – E
• Scout Diagnostics – E
• Sentinel Pediatric Biosystems, LLC – E
• Spherix Inc. – E
• Stallion Therapeutics, Inc. – E
• Stem Cell Innovations/Amphioxus Cell Technologies, Inc. – D, H
• Suregene, LLC – E
• TGen – C
• Topaz Pharmaceuticals, Inc. – G
• VisiGen Biotechnologies, Inc. – D, H
• VitaTech, LLC – E
• Yaupon Therapeutics – E

A:  Letter to Senators Chambliss and Isakson (2007-12-12) – 10 signatories
B:  Letter to Senator Allard (2007-12-17) – 33
C:  Letter to Senators McCain and Kyl (2008-01-18) – 28
D:  Letter to Senator Hutchinson (2008-01-22) – 54
E:  Letter to Senators McConnell and Bunning (2008-01-23) – 51
F:  Letter to Senators Reid and Ensign (2008-01-23) – 19
G:  Letter to Senators Specter and Casey (2008-01-24) – 29
H:  Letter to Senator Cornyn (2008-01-27) – 54
I:  Letter to Senators Alexander and Corker (2008-01-29) – 15

Last month, we also reported on a letter in opposition to the Senate bill that was sent on October 23, 2007 to Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY).  That letter was signed by 437 universities, businesses, and organizations.  We are currently analyzing the list of signatories to the October 23 letter, and hope to supplement the above list in the coming week.

    By Kevin E. Noonan  —

The rising tide has now become a flood of U.S. universities, businesses, and individuals in opposition to the patent "reform" bill poised for a vote in the Senate (S. 1145).  And the mechanism for this opposition is the traditional way Americans petition their government for redress — the letter.  Like our previous reports on earlier letters (see "U.S. Senate Mailbox Filling with Letters against Passage of Patent ‘Reform’ Bill" and "An Update"), Senators from eight states have now received letters (see below) signed by hundreds of interested parties.  These Senators include Specter (R) and Casey (D) of Pennsylvania, Chambliss (R) and Isakson (R) of Georgia, Alexander (R) and Corker (R) of Tennessee, Allard (R) of Colorado, McCain (R) and Kyl (R) of Arizona, Cornyn (R) and Hutchinson (R) of Texas, Ensign (R) of Nevada, Bunning (R) of Kentucky, and both Majority Leader Reid (D-NV) and Minority Leader McConnell (R-KY).

The letters are similar in content.  Each asserts that the legislation will harm innovation and American business and cost jobs.  They are consistent in opposing the damages and post-grant opposition proceedings, as well as calling for inequitable conduct reform along the lines of the recommendations in the National Academy of Sciences (NAS) report.  Some of the letters also challenge the venue provisions, interlocutory appeals, and the expanded search and analysis provisions, and the letter to Texas Senator Kay Bailey Hutchinson mentions the Supreme Court decisions and Patent and Trademark Office regulatory initiatives undertaken in 2007.  The letter suggests that the cumulative effect of the combination of these decisions and regulations and the changes contained in the legislation would harm rather than reform patent law.

Significantly, the letter containing the most extensive discussion of the deficiencies of S. 1145, and suggestions for how the bill should be amended or rewritten, is the letter to Senate Minority Leader McConnell.  Like the others, this letter highlights damages, venue, inequitable conduct, and the search and analysis provisions of the bill as being harmful to U.S. innovation and the economy, but it also contains some suggestions.  These include:  elimination or curtailment (along the lines of H.R. 1903, the corresponding patent "reform" bill passed by the House of Representatives last year; see "Patent ‘Reform’ Bill Passes House of Representatives") of the "second window" for patent oppositions; maintaining a court’s discretion on calculating damages; affirmatively not granting the Patent and Trademark Office any substantive rulemaking authority (S. 1145 limits the PTO’s authority to fee-setting), eliminating the enhanced prior art search and characterization requirements or tying such requirements to changes (such as those suggested by the NAS in its 2004 report) in the thresholds and activities that constitute inequitable conduct, and permitting venue in patent infringement cases to lie in districts where the claimant has its principal place of business or has engaged in substantial research, development, or manufacturing activities.

It is apparent that large segments of the U.S. technology industry are opposed to this bill, and that activities by the Judiciary Committee Chairman, Senator Leahy (D-VT), and Majority Leader Reid to bring the bill to a vote have galvanized the signatories to action.  Letter-writing may not be enough, however;  although their letters are appropriately respectful and focused on their concern for the American economy and innovative technology, it should not be too much for these signatories to suggest, in this election year, that there will be a political price to be paid by any legislator who fails to heed these concerns.

To view any of the nine letters, please see:

• Letter to Senators Alexander and Corker
• Letter to Senator Allard
• Letter to Senators Chambliss and Isakson
• Letter to Senator Cornyn
• Letter to Senator Hutchinson
• Letter to Senators McCain and Kyl
• Letter to Senators McConnell and Bunning
• Letter to Senators Reid and Ensign
• Letter to Senators Specter and Casey

For additional information regarding this topic, please see:

• "U.S. Senate Mailbox Filling with Letters against Passage of Patent ‘Reform’ Bill: An Update," January 23, 2008
• "U.S. Senate Mailbox Filling with Letters against Passage of Patent ‘Reform’ Bill," January 18, 2008
• "Patent Reform Discussed on Senate Floor," December 21, 2007
• "Enjoined New Rules and Patent Reform Finally Appearing on Biotech Industry’s Radar," December 20, 2007
• "Chinese IP Judge Discusses Implications of U.S. Patent Reform Bill and Two Congressmen Heed Warning," December 17, 2007
• "IPO President Seeks Deletion of Patent Reform Provision," December 12, 2007
• "Senate May Act on Patent ‘Reform’ Bill in the New Year," December 2, 2007
• "The Wall Street Journal Gets It Half Right," November 5, 2007
• "BIO CEO Provides Briefing on Follow-On Biologics and Patent Reform," September 18, 2007
• "Patent ‘Reform’ Bill Passes House of Representatives," September 9, 2007
• "Reversal in Microsoft Case Weakens Patent Reform Argument," August 7, 2007
• "San Francisco Chronicle Opines on Patent Reform," August 6, 2007
• "Patent Reform Bill to Be Delayed?" June 12, 2007
• "Senate Judiciary Committee Holds Hearing on Patent Reform," June 10, 2007
• "Could Creating a U.S. ‘Utility Model’ Patent Fulfill the ‘Need’ for Patent Law Reform?" May 21, 2007

For Patent Docs‘ series on specific sections of the Senate’s draft report, please see:

• "Interlocutory Decisions & Venue," Section 8, January 29, 2008
• "Damages," Section 4, January 28, 2008
• "Applicant Quality Submissions & Micro-Entities," Section 11, January 25, 2008
• "Post-Grant Procedures," Section 5, January 22, 2008
• "Inequitable Conduct Provisions," Section 12, January 21, 2008
• "First Inventor to File Provisions," Section 2, January 17, 2008
• "Assignee Filings, Mandatory Publication, and Third Party Submissions," Sections 3 and 7, January 16, 2008
• "Late Patent Filings," Section 13 January 15, 2008
• "Draft Report on Senate Patent Reform Bill Circulated," Sections 9 and 15, January 14, 2008