As I reported in Monday's CongressDaily PM edition, some biotechnology and pharmaceutical industry executives are rallying around a proposal by Sen. Orrin Hatch, R-Utah, to change "inequitable conduct" language in the Senate's pending patent reform bill. Read the full story (with details about Hatch's proposal) here.
Hatch, a longtime follower of intellectual property issues, told me in an e-mail after deadline that his proposal also enjoys the support of the American Bar Association's IP section and he believes current inequitable conduct law is "unworkable." "The punishment for what is deemed inequitable too often doesn’t fit the 'crime.' We need to change it," he said.
Inequitable conduct is a "central piece of the patent reform puzzle" but legislation is a collaborative process, he said, adding that he is confident that Senate Judiciary Committee Chairman Patrick Leahy "is working to get all the necessary pieces together." Updates to the patent bill, which Leahy and Hatch introduced last year, are on the way. Expect to read more on that in CongressDaily soon.
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While some are on board with various proposals floated to change the system, others prefer the status quo. Apotex Corporation, Barr Pharmaceuticals, the Generic Pharmaceutical Association, Teva Pharmaceuticals and others wrote to Senate leaders last month asking for them to preserve the inequitable conduct doctrine, which they called "one of the most basic of defenses against gaming the system."
"In the context of pharmaceuticals, the defense enables a fair and timely resolution to litigation and a competitive marketplace, not to mention the removal of improperly obtained patents from our system," they explained. Without the defense, the patent system "could become more vulnerable, patent quality could decrease, and affordable generics could be kept off the market," they warned.