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A Late Addition Worth $214 Million

Amendment to the Patent Reform Bill Last Week Would Benefit Powerful Law Firm, Drug Company

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Rep. Jesse Jackson Jr. got the chamber to reopen a vote Thursday on an amendment to the patent bill that would help a powerful law firm and a drug company. The amendment passed the second time around.

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The House might have sworn off earmarks, but that didn’t stop the chamber from essentially passing one last week that would allow a single drug company to avoid generic competition while saving a powerful law firm from paying out $214 million in a malpractice suit.

The amendment, authored by Rep. John Conyers (D-Mich.) and added to the patent reform bill Thursday, would have a direct benefit for the Medicines Co. by essentially ensuring it retains control of the patent for Angiomax, a blood-thinning medication and MDCO’s flagship product.

The provision would also be a financial boon to WilmerHale, which since February has had a malpractice settlement with MDCO hanging over its head that would require the firm to pay $214 million to the drug company — $115 million out of its own pocket and $99 million from malpractice insurance — if a generic drug is introduced before June 15, 2015.

Although the amendment does not obligate taxpayer funds be spent on a specific project, by virtue of its narrow scope it falls within the broad definition of an earmark and is a classic example of Congress taking pains to assist powerful interests, Taxpayers for Common Sense Vice President Steve Ellis said.

The language “really has no business in this bill,” said Ellis, who called the amendment “almost a private law that helps one or two companies.”

But it almost didn’t happen. The House on Thursday had originally voted against the amendment to the patent bill, only to have the vote reopened after Rep. Jesse Jackson Jr. (D-Ill.) protested that Members were still voting when it was gaveled down.

After much debate, Republicans ultimately reopened the vote, and the tide turned. Several Members switched their votes, while others were able to cast their votes in favor of the amendment after originally missing the vote.

“What’s the point of gaveling down a vote if you can just reopen it?” Ellis asked, arguing that “it’s not Congress’ job to bail out bad decisions or indecisions ... by WilmerHale or the Medicines Co.”

A spokesman for Majority Leader Eric Cantor (Va.) said the vote was opened as a courtesy to Members who were still attempting to vote.

“There were Members of both parties still voting from the well,” the spokesman said, adding that Cantor ultimately backed the amendment because it “established a consistent standard for the U.S. Patent Office by bringing their deadlines into conformity.”

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