By Donald Zuhn --
Earlier today, Patent Docs participated in a conference call with Jim Greenwood, the President and CEO of the Biotechnology Industry Organization (BIO). Mr. Greenwood, who represented Pennsylvania's Eighth District in the U.S. House of Representatives from January 1993 through January 2005 prior to his BIO appointment, had invited a handful of biotech and pharma bloggers to participate in the conference call, where he provided a briefing on the Biologics Price Competition and Innovation Act of 2007 (see "Senate Committee Passes Biologics Legislation"), which the Senate Committee on Health, Education, Labor & Pensions passed on June 27, 2007, and the Patent Reform Act of 2007 (see "Patent "Reform" Bill Passes House of Representatives"), which the House of Representatives passed on September 7, 2007.
On the issue of patent reform, Mr. Greenwood (at left) stated that the House bill was "largely inspired" by the information technology industry, which relies on a business model that is quite different from that of the biotech/pharma sector. Mr. Greenwood predicted that if the House bill were passed into law, it would be "easier and less costly to infringe patents." While noting that the bill which the House approved by a 220-175 margin was better than the legislation the House had started out with, Mr. Greenwood believed the House bill was "still bad." As a result, Mr. Greenwood said that BIO would continue to oppose the House bill and work with the Senate to pass a bill more favorable to the 1,100 biotechnology companies, academic institutions, state biotechnology centers, and related organizations comprising BIO.
With regard to those portions of the House bill that BIO finds to be most problematic, Mr. Greenwood began by criticizing the bill's apportionment of damages provision, which allows a court in an infringement action to calculate a reasonable royalty based on the "economic value attributable to patent's specific contribution over prior art." When asked if BIO could offer an acceptable middle ground between the current system and the House's apportionment of damages provision, Mr. Greenwood replied that the current system "beats anything we have seen in the legislation."
Mr. Greenwood also found the inequitable conduct and enhanced rulemaking authority provisions of the House bill to be lacking. With respect to the latter provision, Mr. Greenwood expressed dissatisfaction with the differences between the House and Senate bills (the House bill would retroactively authorize the Patent Office's new continuation and claims rules and the Senate bill would only grant the Office some fee-setting authority). While acknowledging that USPTO officials may have been "well intentioned" in passing the new continuation and claims rules, Mr. Greenwood believed that such decisions "should be left to Congress, and not to administrators." Nevertheless, Mr. Greenwood stressed that BIO was "trying to work amicably with the PTO" with respect to the new rules, and observed that a number of BIO-supported changes to the proposed continuation and claims rules had made their way into the final rule. Mr. Greenwood concluded by stating that BIO had not taken a position with respect to any legal challenges to the new rules, such as Dr. Tafas' action (see "Rules Challenger Amends Complaint and Withdraws PI Motion").
Orange Book Blog, which also participated in the conference call, has reported on Mr. Greenwood's comments concerning the Biologics Price Competition and Innovation Act of 2007.
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