America-Israel Patent Law

Angiomax: Last-Minute Reprieve for The Medicines Company (Or, How Sidley Austin Earned Its Keep)

In an earlier post, I discussed The Medicines Company’s last-ditch effort to save the exclusivity for its Angiomax product via its US 5,196,404, which was due to expire on March 23, 2010.  Last week, the Federal District Court for the Eastern District of Virginia ordered the USPTO to reconsider its decision denying TMC’s application for a patent term extension in light of issues raised by TMC, and to ensure that the patent would not lapse prior to disposition of the suit pending before the court.  In response, the USPTO issued an interim extension of the patent until May 23, but then issued a decision in which it again denied TMC’s application.  The decision did not rescind the interim extension order, and thus it still stands, unless the EDVa says otherwise before May 23. 

 

TMC’s Problem

To recap the situation, TMC’s application for a patent term extension (PTE) was filed a day late and denied on that basis.  So TMC requested reconsideration, but that too was denied in April 2007.  Rather than appeal that decision to the courts, TMC turned to lobbying, to try to secure an amendment that would have retroactively allowed for the late PTE filing.  But that effort also went nowhere.

 

Having exhausted its remedies, and having waited too long to appeal the PTO’s reconsideration decision, TMC embarked upon a new strategy: it would try to get the PTO into court through the back door, because it perceived something that could be regarded as a procedural flaw in the PTO’s reconsideration decision of April 2007.  Up until that decision, the PTO had regarded the 60-window for filing a PTE application as beginning the day after the FDA approved the relevant drug product.  The April 2007 reconsideration decision announced, for the first time, that proper statutory interpretation leads to the conclusion that the 60-window begins on the date the FDA approves the relevant drug product, not a day later.  So in December 2009, TMC requested leave to file a second petition for reconsideration, on the grounds that it hadn’t had an opportunity to properly address the new way of calculating the PTE filing deadline, since that new calculation scheme was only announced in the April 2007 decision itself.  

 

The PTO took the bait, allowed the filing of the second reconsideration request, and, as expected, denied it on January 8, 2010.  Whereupon, on January 27, less than two months before the ‘404 patent was to expire and close to three years after the second reconsideration request was denied, TMC sued the USPTO, the FDA, the Department of Health and Human Services, and their various heads in federal court in the Eastern District of Virginia, requesting that the court order the USPTO to regard the PTE request as having been timely filed and to grant the PTE.  (Undoubtedly, had the PTO denied leave to submit the second reconsideration request, TMC still would have found grounds to sue – denial of due process, perhaps? – and still would have reopened the whole can of worms.)

 

TMC Goes to Court

TMC’s argument before the court hinged on the meanings of 35 U.S.C. §156(d)(1) and §156(g)(1)(B)(ii), which respectively state in pertinent part

:

 

§156(d)(1).  To obtain an extension of the term of a patent under this section, the owner of record of the patent or its agent shall submit an application to the Director. Except as provided in paragraph (5), such an application may only be submitted within the sixty-day period beginning on the date the product received permission under the provision of law under which the applicable regulatory review period occurred for commercial marketing or use. * * * [emphasis added – DJF]

 

§156(g)(1)(B)(ii). For purposes of this section, the term "regulatory review period" has the following meanings:(1) (B) The regulatory review period for a new drug, antibiotic drug, or human biological product is the sum of - (i) the period beginning on the date an exemption under subsection (i) of section 505 or subsection (d) of section 507 became effective for the approved product and ending on the date an application was initially submitted for such drug product under section 351, 505, or 507, and (ii) the period beginning on the date the application was initially submitted for the approved product under section 351, subsection (b) of section 505, or section 507 and ending on the date such application was approved under such section. [emphasis added – DJF]

 

TMC argued, first, that the FDA itself takes an inconsistent approach with regard to what constitutes a “date” under §156: for papers filed by applicants, the FDA adopted a “business hours” interpretation of the word “date”, such that papers filed with the FDA after business hours were considered to be filed on the next business day; but for papers sent by the FDA, it was the actual calendar date on which the document was sent, even the communication was sent after normal business hours.   This inconsistency within the same statutory section is ipso facto arbitrary and capricious, said TMC, and thus in violation of the Administrative Procedures Act. 

 

Furthermore, argued TMC,

(a)    the PTO adopted the FDA’s interpretation of “date” in §156(d)(1), when the PTO could instead have adopted its own interpretation of this term, namely an “after hours” definition of this term, and

 

(b)    although the PTO argued that an “after hours” definition of “date” in §156(d)(1) was precluded by the wording of the statute itself, the PTO was wrong, and an “after hours” interpretation of “date” in §156(d)(1) was not foreclosed by the statute. 

 

Since the notice from the FDA was faxed after hours on Friday, December 15, 2000, an “after hours” view of “date” in §156(d)(1) would mean that the 60-day window only opened on Monday, December 18, 2000, and thus TMC’s PTE application was timely filed.

 

The Court's Memorandum Order

On March 16, 2010 – seven days before the ‘404 patent was to have expired – the District Court issued a memorandum opinion and order.  The court ruled that in denying TMC’s second petition for reconsideration, the PTO had failed to address various many of the arguments set forth by TMC, and that the PTO itself, in earlier litigation regarding §156, had said that these statutory provisions should be “liberally construed” so as to enable the remedial nature of §156 to be given full effect. 

 

The court noted that the PTO had implicitly rejected the possibility of giving a “business hours” interpretation to “date” in §156(d)(1), without giving reasons for its position; and that this interpretation was at odds with the FDA’s own position on the use of this term in §156(g) with respect to papers filed by PTE applicants in their dealings with the FDA, but in it denial of TMC’s second reconsideration request, the PTO had not even tried to reconcile this difference. 

 

The court also noted that §156(d)(1) refers to the date on which the product “received permission”, whereas §156(g)(1)(B)(ii) refers to the date on which the application was “approved”, and therefore the “date” referred to in these sections is not necessarily the same. 

 

Thus the court issued a memorandum opinion and order vacating the PTO’s decision regarding the reconsideration petition and remanding to the PTO for reconsideration of the date of approval under §156, and ordering the PTO to “take such actions as necessary to ensure the ‘404 patent does not expire pending resolution of these proceedings”. 

 

Interim Extension

On March 18, 2010, TMC filed a request for an interim extension in accordance with 35 U.S.C. §156(e)(2).  TMC asked for the maximum 1-year interim extension, on the grounds that even if the PTO were to find immediately find that TMC had timely filed its PTE application, it would be well after March 23, 2010 when the matter would finally be resolved – it would take time for the FDA to check the amount of extension due, for that finding to be published, and for the period of public comment to pass before the PTE could be granted.  Conversely, wrote TMC, if the PTO again denied the PTE application as having been untimely filed, TMC would still entitled to seek reconsideration and subsequent court review.   

 

That same day (and in accordance with the court order), the PTO granted an interim extension  – but only until May 23, 2010. 

 

Even if TMC ultimately loses its bid for a PTE, it’s already won: every additional day of exclusivity for Angiomax is worth over ten million dollars, and its clear that the PTO will continue to grant interim extensions as long as proceedings are pending before the court.   The fact that the current interim extension was granted for only two months is a means of ensuring that TMC doesn’t drag out the proceedings longer than allowed by law, but will not result in faster disposition of the case - it will just mean that TMC will file its request for reconsideration on the last possible date.  Assuming, that is, that its lawyers at Sidley Austin (who were not the ones who handled the original PTE application) properly docket the deadline.  Which of course they will – lightning doesn’t strike in the same place twice, right?

 

The PTO's Rejection of TMC's Petition on Remand

On March 19, a day after issuing the interim extension, the PTO again determined that TMC’s PTE application wasn’t timely filed.  This time, though, the PTO addressed the points that the EDVa court said it had failed to address in its earlier decision denying the second request for reconsideration.  Among other things, the PTO said that it had originally determined the (un)timeliness of TMC’s PTE application on its own, without recourse to the FDA’s views on the matter; that a calendar day was the best way to interpret “date” in §156(d)(1) in view of the text, structure and purpose of the statute (among other things noting that a calendar day definition provide the most certainty in interpreting the statute); and that such interpretation of “date” in §156(d)(1) was consistent with both CAFC precedent and the USPTO’s historic practice (noting inter alia that the USPTO consistently uses a calendar day definition of “date” with regard to events outside the USPTO, such as events triggering an on-sale bar, and that the USPTO in its own dealings allows filings until midnight on the date in question).  Along the way, the USPTO noted that whereas the patent statute provides the Director with discretion to grant extensions in certain situations, or to allow applicants or patentees to rectify missed filing dates, no such provisions are made for the filing of PTE applications.  “By creating such a non-extendable period, Congress provided a date-certain period by which all players would know their future rights.”

 

Most entertaining were the PTO’s observation brought to support its conclusion that TMC’s predicament was of its own making.   Thus the PTO quoted from testimony given before Congress by TMC’s chairman, who averred that “Unfortunately, the 60-day requirement was evidently mistaken for a two-month requirement…”  It also cited numerous occasions on which TMC itself stated that approval for Angiomax was granted on December 15, 2000, such as in shareholder’s reports.  And no less importantly, noted the PTO, while the USPTO issued its denial of TMC’s reconsideration request in April 2007, TMC did not timely sue the USPTO or the FDA, but instead 

 

“spent the past three years lobbying Congress for a legislative fix to its problem…Thus, it was [TMC]’s choice to place itself on the courthouse steps on the eve of its patent expiration.  Just as [TMC] waited until the very last minute to file its PTE application, and them some, it likewise waited to the very last minute to seek redress of the USPTO’s adverse patent term extension decision.  [TMC]’s dire situation is therefore exclusively of its own making.” 

 

In my previous post on this topic, I likened TMC’s situation to the person who kills his parents, then pleads for mercy before the court because he’s an orphan.  Apparently the USPTO sees it that way as well. 

 

Whither the Third Parties, And Other Conundrums

Aside from the EDVa sanctioning TMC’s gaming of the system, there are other troubling aspects to this story. 

 

For starters, at least one company, Teva, has a pending ANDA for bivalirudin.  While the PTO recognized in its most recent decision that third parties (such as Teva) have a stake in the PTE determination, it is unclear that such third parties have any redress in the present situation.  I am not sufficiently versed in the administrative procedures act to know if Teva, for example, can intervene in TMC’s petitions, but considerations of justice would seem to mitigate in favor of such intervention.  Teva filed a paragraph III certification regarding the ‘404 patent, which means that but for the just-granted extension of the patent, the FDA could approve Teva’s ANDA for bivalirudin later this week.  So if FDA approval is the only thing holding Teva back from selling (and no preliminary injunction has issued against Teva on the basis of TMC’s late-granted US 7,582,727 and US 7,598,343 in the pending litigation on those patents, against which Teva amended its ANDA by filing paragraph IV notifications), then TMC will unfairly benefit from the present interim extension, Teva will lose an opportunity to make money, and consumers will pay more for bivalirudin than they otherwise should.  In the narrow administrative law view of the case taken by the EDVa, which focuses only on TMC and the USPTO’s actions, those concerns seem to have been lost.

 

Another interesting question is, why didn’t the USPTO include the explanations it provided in last week’s decision in its decision of January 8, 2010?  Inclusion of those explanations would have expedited the matter before the EDVa. 

 

Also, here the USPTO took just two days to issue a 15 page decision with annexes; so why does the USPTO putter around with re-examinations (which are supposed to be handled with “special dispatch”, i.e. quickly), especially in those cases where litigation is pending at the same time?  If the USPTO can produce this kind of work this quickly in this case, it can act more quickly in reexaminations.  Unless, of course, its new explanations aren’t new but were already in hand weeks ago…in which case, it again must be asked, why didn’t the USPTO include them in its decision of January 8?

 

This much is certain: the Waxman-Hatch amendment wasn’t meant to create the kind of uncertainty engendered in this case, or to enable players who clearly missed their deadlines to abuse the system.  And the lawyers at Sidley Austin who handled this action for TMC earned their keep – the extra income to TMC from the still-exclusive sales on March 24 will more than cover those lawyers’ fees.

Procedure, Proschmedure

For people who observe both the US and Israeli legal scenes, one striking difference between the two is the emphasis placed on judicial procedure.  Put coarsely, the USA places more emphasis on procedure than does Israel.  While this difference is most visibly reflected in the courtroom itself – from where I sit, it appears that US judges are more likely than their Israeli counterparts to enter default judgments or base other ruling on purely procedural grounds – it shows up elsewhere as well.  For example, civil procedure is deemed sufficiently important in US law that US law schools teach civil procedure as a year-long, required first-year course.  In contrast, in Israel civ pro is taught as a one-semester course, in the in the last semester of law school – almost as an afterthought.

 

Three recent decisions, two from the ILPTO, one from a US court, reminded me of this difference in emphases as it plays out in the patent sphere.  The US case was the Federal Circuit’s December 22, 2009 decision in i4i vs Microsoft, which was reissued by the panel on March 10, 2010.  In that case, a feature in Microsoft Word was alleged to infringe i4i’s patent.  The feature at issue in Microsoft’s program was a minor one that relatively few users utilize - and that Microsoft was ultimately readily able to re-tool to be non-infringing.  Microsoft was found by jury verdict in the district court to have infringed i4i’s patent, was ordered to pay close to $300 million in damages, and was enjoined from selling versions of MS Word that contained the infringing software.

 

Before the case went to the jury, Microsoft motioned for judgment as a matter of law (JMOL) – a request that the court decide the issue right then and there on the basis of the facts as developed – on the grounds that the patent was invalid due prior sale of the invention.  However, Microsoft did not move for JMOL on the basis of obviousness. 

 

After the verdict, Microsoft appealed to the CAFC, in part on the grounds that the patent was obvious over the prior art and that the jury had erred in determining otherwise.  The CAFC ignored this part of Microsoft’s invalidity challenge on grounds that because of a procedural failure on the part of Microsoft, namely Microsoft’s failure to motion for JMOL for obviousness before the case went to the jury, the CAFC could not review the jury’s findings on obviousness:

 

“Microsoft has waived its right to challenge the factual findings underlying the jury’s implicit obviousness verdict because it did not file a pre-verdict JMOL on obviousness for the Rita, DeRose and Kugimiya references. Fed. R. Civ. P. 50(a), (b)…Microsoft’s pre-verdict JMOL on anticipation, based on S4, was insufficient to preserve its right to post-verdict JMOL on a different theory (obviousness), or on different prior art (Rita, DeRose, Kugimiya) … Accordingly, we do not consider whether the evidence presented at trial was legally sufficient to support the jury’s verdict.  Our review is limited to determining whether the district court’s legal conclusion of nonobviousness was correct, based on the presumed factual findings.”

 

A cynic could read that as the CAFC politely saying, “We don’t care if the patent is valid or not, and we don’t care about the size of the award.  Procedurally, your lawyers goofed by failing to preserve your right to JMOL, and if that costs you, so be it.”  Personally I’d characterize the CAFC’s approach a bit more generously: courts have heavy caseloads, and the procedural rules are there to protect the integrity of the process and the efficiency of the system for all litigants, so the procedural rules matter, and litigants choose to flaunt those rules at their own peril. 

 

Contrast that decision with the ILPTO’s decisions in opposition proceedings against patent applications nos. 120382 and 151450, and in a revocation action against Israel Patent No. 168574, where the amounts of money at stake weren’t anywhere close to the $300 million of the i4i case.  (Copies of the decisions can be downloaded here 120382, 151450 and here 168574; due to a mistake on the ILPTO’s web site, no decisions regarding patents from 2009 are presently downloadable there.)  Patent revocation actions in Israel (also sometimes called cancellation actions) are sort of like inter partes reexaminations in the USA, but with teeth: both are conducted before the respective patent offices, but unlike so-called US inter partes reexam, Israel revocations proceedings really are inter partes.  Ditto for opposition proceedings, except that Israel oppositions are conducted pre-grant.  In both types of actions, both sides participate fully throughout, with submission of written direct testimony and cross-examination of witnesses. 

 

A word about the procedure in both types of proceedings.  Opposition proceedings commence with the filing of a notice of opposition (and payment of a fee, of course), which must be filed within three months of publication of the acceptance of the application by the ILPTO.  The opposer then has a month to file its pleadings, and the applicant has three months to file its pleadings in response.  The opposer then has three months to file its written evidence-in-chief; the applicant then has three months to file its written evidence in reply.  The opposer then has three months to file supplemental evidence to rebut points made in the applicant’s evidence.  Thereafter there’s a hearing at which the parties cross-examine each other’s witnesses, followed by written summations.

 

Revocation proceedings follow a similar trajectory, except that in accordance with Regulation 103(a), the party seeking revocation must come out with all guns blazing: the request to revoke the patent must be accompanied not only by the required fee but by the requestor’s pleadings and written evidence.  Thereafter the proceedings are akin to those of an opposition.  The logic behind requiring revocation requestors, but not opposers, to file everything at once would seem to be that whereas the opposer only gets to look at the application file upon publication (as explained here), and therefore may require more time to get its pleadings and evidence in order, the revocation requestor has had time to evaluate the patent and marshall its forces for attacking the patent.  Therefore, for the sake of efficiency, the requestor has to lay all its cards on the table from the get-go. 

 

In both opposition and revocation proceedings, the pleadings (referred to in the regulations as the “statement of arguments”) are supposed to “specify the grounds for the opposition [or revocation]” and “the facts upon which the opposer’s [or requestor’s] pleadings are based”.  In the oppositions to Wyeth’s patent applications nos. 120382 and 151450 (a parent and its divisional), the opposer filed pleadings that evidently included a statement of the prior publications upon which it planned to rely, and then, after the applicant had filed its pleadings, motioned to file written evidence that relied upon additional publications not mentioned in the opposer’s own pleadings.  (I say “evidently” because, as discussed in an earlier post, the ILPTO’s online database doesn’t include file histories or papers filed in oppositions, so my knowledge of what transpired here comes from the ILPTO’s decision itself.)  The applicant opposed the motion, not per se on grounds that the new publications should have been mentioned in the pleadings, but on the related grounds that the applicant would be prejudiced by this late inclusion, and that in any event, since the publications weren’t mentioned earlier, the request for their late inclusion should have been supported by an affidavit.

 

The adjudicator deciding the case agreed that, as set forth in the relevant regulations, publications impacting the patentability of the invention upon which an opposer plans to rely should be mentioned in the pleadings.  Consequently, in order to rely on previously unmentioned publications, the opposer should have filed a motion to amend its pleadings, explaining why such late inclusion was necessary and including an affidavit in support of the motion.  Such motions, wrote the adjudicator, are not granted as a matter of course, as it is the exchange of pleadings that establishes the scope of the disagreement between the parties.  Consequently, allowing an opposer to amend its pleadings after the applicant has filed its own pleadings could be prejudicial to the applicant. 

 

Furthermore, said the adjudicator, the “purity of the patents register” – a phrase commonly invoked by opposers when seeking late introduction of evidence, used by opposers to imply that having an invalid patent on the register would constitute a crime against humanity, and therefore it is imperative that the ILPTO allow that evidence into the record – was not per se reason to allow amendment of the opposer’s pleadings.  The adjudicator even went so far as to say, “As explained supra, there is great importance in the procedural rules pertaining to the deadlines for the submission of the parties’ pleadings and their content, as these establish the bounds of the disagreement between the parties…In view of the foregoing, I must deny the opposer’s motion.”

 

So far, this doesn’t sound different from the US approach.  But then, if you’re a champion of procedure, the adjudicator inexplicably snatched defeat from the jaws of victory:

 

“Nevertheless, since the opposer has repeatedly asserted that there is nothing in the prior publications it now seeks to introduce to expand the scope of the disagreement, and in view of the particular circumstances before me, I accede to the request to allow the opposer’s declarant to rely on publications that were not listed in the pleadings and appended to his declaration, provided that they will be insufficient to tip the scales in the decision in the opposition proper.  For this purpose, I do not find it necessary to order the opposer to submit a declaration in support of its motion.” [emphasis in the original]

 

Talk about paying lip service to procedure.  The adjudicator didn’t explain how the “particular circumstances” here warranted treatment that deviated from the procedures established by the regulations.  And what does it mean that the publications will only be allowed in as long as they’re “insufficient to tip the scales in the decision in the opposition proper”?  If those publications prove critical to the opposer’s case, will the adjudicator really be capable of ignoring the additional publications when deciding the matter? 

 

As to the revocation proceedings, IL 168574 was granted in March 2006.  The request to revoke the patent was filed in February 2009, without any evidence in support of the request.  In April 2009 the patentee asked for summary judgment in view of the lack of evidence supporting the revocation request.  Apparently the SJ request was denied, as the patentee filed its response (including evidence) in July 2009 (presumably after having been granted an extension to file), and in October 2009 the requestor filed (a) evidence in reply, (b) with additional pleadings, and (c) a declaration that was intended to serve as evidence-in-chief – i.e. a declaration that should have been filed with the revocation request itself some eight months earlier. 

 

The patentee objected to both the filing of the supplemental pleadings, as well as the late filing of the evidence-in-chief, and motioned that both documents be stricken from the record.  The ILPTO adjudicator did not hesitate in acceding to the motion regarding the supplemental pleadings: the regulations don’t provide for a requestor to file supplemental pleadings as a matter of right, only supplemental evidence, and the requestor didn’t ask for leave to file the supplemental pleadings.  Hence the supplemental pleadings were out.  Score one for procedure. 

 

The late-filed evidence-in-chief should have received the same treatment, a fact admitted to by the adjudicator herself: not only did the requestor fail to file evidence-in-chief with her revocation request, per the statute and regulations, but she didn’t even seek to file such evidence when responding to the motion for summary judgment for lack of requestor’s evidence.  As the adjudicator wrote, 

 

“I find the requestor’s behavior deficient.  Once the date for submission of her declaration was set, it was not up to her to take the law into her own hands, to not timely file the declaration, and then late in the proceedings to request an extension to file the declaration.”

 

At this point it sounds like the requestor is about to get tossed out on her ear – as according to the regulations she should have been.  But, continued the adjudicator,

 

“Nevertheless, under the circumstances, I believe the request [to file the declaration late] should be granted, and the requestor shouldn’t be denied her day in court just because failed to follow the procedural rules.” 

 

The adjudicator then cited two cases that purportedly supported the proposition that deviation from procedurals rules is ok.  However, the adjudicator conveniently ignored that one of the two cases was a district court case, and therefore of no precedential value; and she also ignored that the other case, a Supreme Court case, was distinguishable, inter alia on grounds that in that case, it was the respondant, not the movant, who was late in filing his declaration, and he missed the deadline by only a week, not eight months.  In other words, in that case, neither party was really prejudiced by the grant of the extension.

 

But the adjudicator’s real reason for not tossing out the requestor’s declaration was that the requestor was acting pro se.  “This is not to say that a different law applies to pro se litigants”, said the adjudicator, but, “Nevertheless, I believe that when the situation warrants it, a certain amount of flexibility in the application of procedural rules is called for when dealing with procedural mistakes by pro se litigants”.  To the extent the other side is prejudiced by the pro se litigant’s behavior, said the adjudicator, that can be compensated for in the award of costs at the end of the proceedings. 

 

Seems like the adjudicator may as well have written, “A different law doesn’t apply to pro se litigants…except when it does”.  By giving the requestor in this case the opportunity to file evidence-in-chief after the patentee had already filed its pleadings and evidence, she turned the entire revocation procedure on its head.  But hey, it’s only procedure, right?  Those procedural rules probably appeared out of thin air.  It’s not like there was any thought that went into them, right?

 

Curiously, in another pro se litigant case, an ex parte matter concerning several design applications, the same adjudicator took a strict view with regard to the pro se party.  But that’s a case for a different post. 

PSST! Hey Bud! You Wanna Buy Some Air?

The title of this post is taken from a bit that was used recurringly on Sesame Street when I was a kid.  It’s an unfortunate fact of life that in every industry (even those found outside the DC beltway), there will be some unscrupulous people.  Patent practice is no exception, one of the more notorious examples in this business being invention promotion schemes. 

 

This morning I opened my mail and found yet another example.  The letter I received is reproduced below; click on the letter for a larger, more legible image.  (A caveat: although I am now the attorney of record on this application, I didn’t draft it.  Nor, as will be explained below, the did the in-house patent agent for Quark.) 

 

 

As you can see from the “Dear Sir or Madam” paragraph, this outfit is making the generous offer to “register your patent in our private database”, which will be sent as a searchable CD ROM.  All for the low, low price of $2717.  Wow.  Great idea!  A searchable database.  Who’d a thunk it?  I mean, WIPO already provides a searchable database online for free, but now I can pay these guys for the same privilege!  What’ll they think of next? 

 

It’s too bad they didn’t come up with this idea pre-Bilski: then they might have been able to patent their idea for bilking money from unsuspecting inventors.  They could have titled the application, “Method for Separating Fools from their Money”.   

 

OK, so these guys are knowingly marketing a worthless product.  Wouldn’t be the first time that happened.  But if you’re going to do that, at least make a good sales pitch.  Here, you don’t need to be a patent professional to know that something is amiss: it’s pretty hard to have a patent application that publishes before it’s filed.   Yet that’s what they’re telling me: the application was filed in October 2008 and published six months earlier, in April 2008.  Steee-rike one!

 

Furthermore, the terms of the offer are stated to “printed on the back of this paper”.  The back of the paper is blank.  Steee-rike two!

 

And the kicker: this application wasn’t filed in the name of Quark Pharmaceuticals, it was filed in the name of the sole inventor as inventor and applicant; and that sole inventor isn’t one of the seven inventors listed on the sheet IPTD sent me.  Steee-rike three!  Yer out!  (I suspect that IPTD confused this application with PCT/IL2008/000503, a filed a day earlier at the Israel receiving office and published the same day as WO 2008/126085…although that application only lists one inventor, not seven.  It appears IPTD can’t even get its mistakes right.)

 

What I find intriguing here is, what kind of an idiot tries to sell a database product, let alone a worthless database product, by demonstrating to his potential clients complete and utter incompetence at data entry and management?  Even if this were a legitimate operation, and there was some added value in the database (as is the case, for example, in STN’s full-text US patents database, which adds CAS registry numbers for chemical compounds to patents that one can otherwise search for free), I wouldn’t give these guys a penny after seeing how they completely screwed up the particulars on the offer sheet.

 

I also wonder just who they’re targeting, and how they expect to make money.  This letter was addressed to me, a patent professional.  But no patent agent or attorney is going to be fooled by this ruse.  If they’re targeting unsuspecting pro se applicants, hoping to make practical use of P.T. Barnum’s observation that there’s a sucker born every minute, then why send the letter to the applicant’s representative?    Why not save money and send letters directly to pro se applicants or to sole inventors? 

 

I suppose that for $2717, it only takes one or two fools to cover the cost of printing and postage for several hundred letters, so maybe there’s some money to be made here.  I’d just as soon they lose their entire investment.  And stop wasting trees on stupid offers of worthless services.