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Lawyers have been trying to hitch rides with Henry Bernstein all year. Bernstein runs the economic development office of Montgomery County, Md., immediately northwest of the District of Columbia, and that makes him an ideal tour guide to DNA Alley. Bernstein says that about a dozen sets of attorneys from large national firms have sat in the passenger seat as he has driven on and off Interstate 270 — past the National Institutes of Health, past the Walter Reed Army Institute of Research, past the county-run incubator for biotechnology companies, past the research facilities for The Johns Hopkins University and the University of Maryland, past the headquarters of Celera Genomics Group and Human Genome Sciences, and past companies offering everything from drug discovery know-how to cryogenic equipment. Maryland houses roughly 300 of America’s 1,400 bioscience companies, and 200 of these are located in Bernstein’s county. Leslie Davis came down from Boston last year to take her own drive, and ended up moving her business there. In March, the finance lawyer left her well-established practice at Testa, Hurwitz & Thibeault and opened a Gaithersburg branch of San Francisco’s Heller Ehrman White & McAuliffe. Heller is the first big national firm to plant itself in the Maryland suburbs of D.C., which, with Virginia, has attracted the fourth most commercial bioscience facilities in the United States. They trail only the bioscience hotbeds of Boston, San Diego, and the San Francisco Bay Area. Davis says that Maryland “is doing it the smart way. It’s not all PR and fluff. It’s providing money, technical expertise, real estate.” In Maryland and elsewhere, the bioscience industry is growing. It is also growing up. During the past 20 years, many of the nation’s bioscience shops have transcended their initial concentration on primary research, and now hope to develop and sell medicines to the public — making them sure bets to wind up lobbying legislators, arguing in the appellate courts, haggling with regulators, and confronting public relations problems. That means more bioscience jobs for D.C. lawyers representing both local clientele and the growing number of companies from around the country that have matured to the point where they need a presence in the nation’s capital. Bernstein says that the companies in his county accept the consequences of higher legal stakes: “There’s an understanding that, to get the best and brightest, you’ll have to pay the freight.” Companies looking for expensive downtown D.C. advice can choose from among a variety of firms now touting their life science prowess and connections. At Shaw Pittman, the roster of available bioscience advisers includes recently retired Florida Republican senator Connie Mack, who, though not a lawyer, developed applicable expertise while pushing for biomedical research funding when he was on Capitol Hill. At Patton Boggs, renowned for its legislative pull, corporate lawyer Sean Murphy boasts: “We’ve got experts in just about every area that is of interest to life science companies. And his roster goes beyond those who are merely fluent in bio law. Although large firms in California and New England might employ experienced biotech attorneys, Murphy says, “they still don’t have the ability to tap congressmen, senators, people from the executive branch.” Before bioscience companies deal with button-pushers, of course, they want to know that the firm has someone who speaks their language. To satisfy those customers, D.C. powerhouse Arnold & Porter recently hired a trio of J.D.s who once wore only white coats while on the job. In February patent prosecutor David Marsh and his Ph.D. in genetics arrived from Howrey Simon Arnold & White. Before him, the firm hired health care finance expert Grant Bagley, M.D., and Scott Chambers, a patent strategist and Ph.D. in molecular biophysics, each from top-level government jobs. In the past, biotechnology counsel’s main concern in D.C. has been the U.S. patent office. Consequently, the local offices best known for biotech work have been either patent specialty firms (e.g., Pennie & Edmonds; Finnegan, Henderson, Farabow, Garrett & Dunner) or a few general practice firms headquartered elsewhere with patent practices dedicated to biotech (Milwaukee’s Foley & Lardner; Boston’s Hale and Dorr). Now, says D.C. legal recruiter Barry Romm of Klein Laudau and Romm, all the big local law firms are soliciting biotech companies, particularly those firms that have represented pharmaceutical outfits before the Food and Drug Administration. “They call me up and say, ‘We’ll pay you lots and lots of money to get us a biotech lawyer.’ They have an FDA practice, an environmental practice, or a corporate high-tech practice, and want to build it from that.” Steve Parker, the ringleader of Arnold & Porter’s life sciences practice, likes to say that the firm’s practice began in the 1950s. Much of that was food and drug regulatory work for what its Web site calls “a client list that’s a Who’s Who of the pharmaceutical industry.” Parker says he has hung with a different crowd. An intimate of genome sequencer Craig Venter for most of the 1990s, he was briefly the general counsel of Venter’s Celera Genomics Group, the winner of the race to transcribe the human genome. In the early ’90s, Arnold & Porter helped Hoffman-LaRoche Ltd. license a technique for replicating DNA, a method that eased the process of genetic analysis and brought the company a reputed $200 million (plus a couple of lingering disputes). More recently, the firm hired one of the most established biotech licensing attorneys in Britain for its London office. In Parker’s eyes, the Arnold & Porter practice is now as formidable as any — rich in knowledge of pharmaceutical science and business, deeply involved in health care financing issues, a longtime litigation power with international reach and strong credibility wherever its lawyers go, including Big Pharma boardrooms and the offices of private investors. Thus, the arrival of former Howrey partner David Marsh’s patent practice sealed the firm’s claim to be the ideal representative for laboratories in D.C.’s marble lobbies. “We resisted for years bringing in patent prosecution capability,” says Parker, explaining that those filings are labor-intensive and competitively priced — and thus rarely profitable. “Ninety percent of patent prosecution doesn’t add the value that one can charge our fees for. That’s where David and his group [are] great.” In other words, Marsh is special enough to bill Arnold & Porter rates. As lawyers at neighboring firms know, patent filers are also key to lucrative work litigating infringement cases. “You’re not going to be retained for a bio patent litigation if you don’t have that capability,” says Murphy of Patton Boggs. He says that his firm, too, is talking with patent groups. Parker acknowledges that Arnold & Porter’s re-engineering is a work in progress. “We will continue to expand our European presence, will expand our presence in California,” he says. In the present, though, promising young companies may notice that the firm’s own Web site profile of its life sciences practice doesn’t once mention the word that is so important to technology companies with few assets: ‘patent.’ “We’re back in the 1950s in terms of marketing,” quips Parker. “We’re thinking about moving into the ’60s, but there’s a lot of debate about that.” (Any change to the Web site apparently requires campaigning inside the firm, but if a firm can’t quickly fiddle with the spiel on its site, how effective can its lawyers be in a fluid, market-driven world?) On July 2, hoping to prove its dedication to fragilely funded tech clients, the firm opened a new suburban office. (That fact is on the Web site.) The firm decided to locate the office in the Tysons Corner, Va., dot-com graveyard and not in Maryland because Virginia’s venture capitalist crowd seemed more touchy than the Bethesda folks about traveling downtown, where they might be spotted mingling with the old guard. Should Maryland techies prove similarly parochial, Parker says he’s sure that one of the firm’s I-270 clients will assist Arnold & Porter with its networking. Arnold & Porter and other longtime Pharma favorites may find it difficult to convince the headstrong, peer-reviewing scientists in charge of younger clients that institutional efficiency is a reason to give one firm all of their work. Larry Gold, CEO of the privately held SomaLogic in Boulder, is happy with Arnold & Porter’s securities and litigation efforts on his behalf. For patent jobs, however, he’ll stick with his longtime patent counsel at a Denver boutique. Should he have patent trouble in D.C., he’s committed to Finnegan, Henderson. Mature companies may be no more ready to switch. The general counsel of Gaithersburg’s publicly traded Gene Logic Inc., Barry Buzogany, says that he assigns one genre of patent application to Philadelphia’s Morgan, Lewis & Bockius; another genre to Atlanta’s Kilpatrick Stockton, which absorbed previous counsel Jones & Askew; and patent litigation to Heller Ehrman (which snared the company’s lawyers from Foley & Lardner, a longtime D.C. biotech player). The company’s corporate work had been with Cooley Godward’s California offices, but they were insufficiently responsive last year during the flush times, and now he’s given that work to Baltimore’s Venable Baetjer and Howard, its longtime employment counsel. Nonetheless, firms that may have ignored biotechnology in years past still have a chance to gain a foothold. While big-firm lawyers were busy being bedazzled by the rapid bloom of information technology enterprises in Northern Virginia, the number of bioscience companies in Maryland was steadily growing — 18 percent during the past three years. “The market is getting big, and it’s pretty untapped,” says Patton Boggs’ Murphy. Industry dynamics also feed aspirants’ hopes. The unpredictability of the underlying science, the lack of cash among the companies pursuing that research, and frequent mergers, acquisitions, and joint ventures promise regularly to upend the industry’s established relationships. Finnegan Henderson, for example, can always have a conflict. “Sometimes you’re the firstest with the mostest,” says patent lawyer Gary Shaffer, coordinator of the biotechnology practice at Venable. He and partners recently stopped by a company that already had a substantial legal department, yet they still ended up getting an audition. “Usually,” the general counsel told Shaffer, “we’d say sorry. But we’re merging and have a lot of due diligence, and we’d like to send you five [patent] applications.” Serendipity didn’t come cheap for Venable. Lawyers at this California company, Shaffer says, knew the two patent specialists he had earlier this year recruited from California-rooted firms. Both laterals had advanced science degrees and books of business, and finding them required hefty headhunting outlays. Yet with the death of communications and the slowing down of the Internet, where else can one invest? The first D.C. area venture fund dedicated exclusively to genetics-related companies opened in 2000. “The perception is there’s this nonworking money that has to be put to work and that biotech is a natural place,” says Dave Schmickel, until recently a funder at Meridian Management Group Inc. What’s more, bioscience has a romantic appeal, fueled by bursts of positive press on genome sequencing, the promise of stem-cell research, and even the most academic biological inquiry (when Newsweek runs a cover story on neurotheology, something is up). What lawyer wants to sit on the sidelines of the future? Right now, not many. It’s not just Henry Bernstein in Maryland fielding calls. In the past six months, the number of firms belonging to the Virginia Biotechnology Association (VBA) has doubled, going from eight to 16. Firms scrambling to build or buy a practice are taking a chance that — even after their lawyers learn the science and the industry — they might still be left with a financial dud. In 25 years, bioscience will most surely have achieved some of its medical promises. Yet with plenty of regulatory hurdles on the way to market, a large number of companies might never earn enough to afford top lawyers. Still, and despite the slow economic times, those in deep are trying to keep ahead of the surging competition. In July, Heller Ehrman added one patent partner to the Gaithersburg office and announced a new program to help client companies procure federal funding. Patience may be the wise course here. In the days after Heller’s announcement, lawyers at Patton Boggs and Shaw Pittman both mentioned in interviews with The American Lawyer that they guide clients to government grants. But one observer in the government is skeptical that any law firm’s help in locating a research grant is worth a client’s money. “I don’t know why they need a lawyer when the government gives so [many] support services,” says Claire Driscoll, associate director of the Technology Transfer Office at the National Human Genome Research Institute. “The lawyer’s just going to download the PDF documents.” Perhaps not. Perhaps the lawyers offer something special. They’d better. In D.C., the competition’s now stiff enough that bioscience lawyers need to prove their worth more than ever.

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