Why Harry Reid Blocked Patent Reform

As negotiations fell apart Wednesday, Republicans and reform advocates began throwing stones at the majority leader.

WASHINGTON, DC - OCTOBER 13: Senate Majority Leader Harry Reid (D-NV) leaves the Capitol building on October 13, 2013 in Washington, DC. Congress continues to struggle to find a solution to end the government shutdown, which is currently in its 13th day. (Photo by Andrew Burton/Getty Images)
National Journal
Dustin Volz
May 21, 2014, 12:10 p.m.

A bi­par­tis­an com­prom­ise meant to slay “pat­ent trolls” quickly fell apart Wed­nes­day in the Sen­ate, and stake­hold­ers wasted little time cast­ing blame on Harry Re­id.

The ma­jor­ity lead­er told Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy this morn­ing that a pat­ent-lit­ig­a­tion re­form bill would not get to the floor even if it passed through Leahy’s pan­el, ac­cord­ing to mul­tiple sources close to the ne­go­ti­ations on and off Cap­it­ol Hill.

The warn­ing, those sources say, is due in large part to op­pos­i­tion from a di­verse ar­ray of in­terests who were not fully sup­port­ive of the re­form ef­forts: tri­al at­tor­neys, the bi­otech in­dustry, and phar­ma­ceut­ic­al com­pan­ies.

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Bring­ing a vote to the floor, one pat­ent lob­by­ist said, would likely have split the Demo­crat­ic caucus, es­pe­cially be­cause many rely on tri­al law­yers for sub­stan­tial cam­paign dona­tions. That con­stitu­ency has re­peatedly ex­pressed re­ser­va­tions about sweep­ing le­gis­la­tion aimed at pat­ent trolls — Cap­it­ol Hill short­hand for com­pan­ies that pur­chase cheap pat­ents and use them for profit by fil­ing ques­tion­able in­fringe­ment law­suits in hopes of set­tling.

Sen. John Cornyn — the lead­er of the Re­pub­lic­an Party’s pro-pat­ent-re­form bloc — seized on the ar­gu­ment that Re­id was at fault for killing the bill.

“Pat­ent re­form is something the White House wants, House Demo­crats sup­por­ted, and an area where there’s bi­par­tis­an agree­ment in the Sen­ate,” Cornyn said in a state­ment. “It’s dis­ap­point­ing the Ma­jor­ity Lead­er has al­lowed the de­mands of one spe­cial in­terest group to trump a bi­par­tis­an will in Con­gress and the over­whelm­ing sup­port of in­nov­at­ors and job cre­at­ors.”

Re­id’s of­fice did not re­spond to re­quests for com­ment.

Un­der pres­sure from Re­id, Leahy is­sued a state­ment that his pan­el was tak­ing pat­ent re­form off its agenda in­def­in­itely, just a day be­fore it was sched­uled to vote on a com­prom­ise that stake­hold­ers be­lieved was at or ex­tremely near the fin­ish line.

The an­nounce­ment caught sev­er­al re­form ad­voc­ates off guard. Many be­lieved the com­mit­tee, which has delayed con­sid­er­a­tion sev­er­al times, was fi­nally ready to hold a vote on lan­guage Cornyn and Sen. Chuck Schu­mer had been work­ing on for weeks.

But just when op­tim­ism had reached new heights, everything col­lapsed.

“At 9 o’clock we were on track. By 11 we were off track.” said a lead­er of one pat­ent-re­form co­ali­tion.

Sen. Chuck Grass­ley, the Ju­di­ciary Com­mit­tee’s top Re­pub­lic­an, also al­luded to Re­id’s in­volve­ment.

“I am sur­prised and dis­ap­poin­ted that the Sen­ate Demo­crat lead­er­ship is not will­ing to move for­ward on a bill that we’ve worked on so hard and were ready and ex­pect­ing to mark up to­mor­row,” Grass­ley said in a state­ment. “We put in a good faith ef­fort to get to this point, and it’s too bad that the bill is be­ing pulled from the agenda.”

An­oth­er lob­by­ist, while not­ing that Re­id played a ma­jor role in end­ing ne­go­ti­ations, also cau­tioned that a full agree­ment had not yet emerged.

“Ul­ti­mately, Leahy was not able to find the con­sensus,” the lob­by­ist said. “He had hoped that the de­sire to get a bill would trump the stake­hold­ers’ de­sire to get more pre­cisely what they wanted, but both sides de­cided that no bill at this time was bet­ter than what they con­sidered a ‘bad’ bill.”

Whatever the case, this much is clear: Pat­ent re­form is all but dead in Con­gress this year.

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