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June 29, 2011 2:17 PM

Proposed Patent Law Could Be Worth $214 Million to Wilmer

Posted by Brian Baxter

An obscure provision tucked into the patent reform bill now making its way through Congress could help Wilmer Cutler Pickering Hale and Dorr avoid paying $214 million to settle potential malpractice claims against the firm by one of its clients, according to sibling publication The National Law Journal.

The malpractice claim stems from Wilmer's decade-old representation of The Medicines Company, a Parsippany, N.J.-based drug manufacturer that missed a key deadline to extend the patent for the anti-blood clotting drug Angiomax, The NLJ reports.

The Patent and Trademark Office (PTO) claimed that Wilmer lawyers missed a 60-day extension application by one day, potentially costing Medicines five years of exclusive drug sales.

But the company and Wilmer got a big win last August when a federal judge in Virginia reversed a ruling by the PTO, finding that the office miscalculated the deadline for a patent extension for Angiomax. A Medicines rival has appealed that ruling to the U.S. Court of Appeals for the Federal Circuit, according to The NLJ, which notes the PTO has chosen not to appeal.

In February the firm and Medicines signed a settlement agreement that was filed with the SEC that spells out any payments Wilmer will make if the Federal Circuit reverses the district court decision or if some other event causes a generic version of Angiomax to be sold in the U.S. before June 15, 2015.

Of the $214 million Wilmer has agreed to pay to settle potential malpractice claims, roughly $99 million would be covered by insurance, the NLJ reports. (The agreement also references Ropes & Gray but does not spell out the firm's role; a firm spokesman declined to provide the NLJ with additional details.)

But Wilmer also has another potential ace up its sleeve to relieve it of any Angiomax-related headaches. The NLJ reports the firm has aggressively lobbied Congress on the issue of filing deadlines, employing the Ken Cunningham Group at a cost of more than $200,000 in 2010.

That lobbying effort may be bearing fruit. Language that would codify the federal district court's 2010 Angiomax ruling has been included as an amendment in broader legislation aimed at overhauling the nation's patent system. Should the bill be passed as is, Wilmer would officially be off the hook for any future malpractice payments related to Angiomax, the NLJ reports (Roll Call first had news Tuesday of the Wilmer-friendly wrinkle in the proposed patent legislation; The Am Law Litigation Daily has more.)

Wilmer co-managing partner William Perlstein told the NLJ that the firm will live up to its obligations regardless of what the final version of the patent reform bill says.

"It is a contingent agreement where we have every expectation that no payment will have to be made,"  Perlstein said. "If the payment does need to be made, we will handle it. We take our obligations seriously . . . . We are confident the court's decision will be upheld and that the payment obligation will not have to be carried out."

The NLJ has the complete breakdown on what payments Wilmer might have to pay and on what timetable, should the Federal Circuit and Congress not make the settlement agreement moot.

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