The Fellowship of the Patent Troll Hunters Is Breaking

Partisan gloves came off Tuesday as the Senate Judiciary Committee delayed consideration of patent legislation for a third time in two weeks.

A man works on the exhibit 'Cave Troll' 18 January 2007 in preparation of the show 'The Lord of the Rings' at the filmpark Babelsberg in Potsdam, eastern Germany.
National Journal
April 8, 2014, 11:38 a.m.

Just weeks ago, a for­mid­able Sen­ate co­ali­tion ap­peared ready to pounce on pat­ent-re­form le­gis­la­tion, provid­ing a rare spot of bi­par­tis­an­ship in an oth­er­wise grid­locked Sen­ate.

But on Tues­day, it be­came clear that that co­he­sion is crack­ing.

The Sen­ate Ju­di­ciary Com­mit­tee an­nounced it would delay its planned con­sid­er­a­tion of a pat­ent-lit­ig­a­tion bill un­til at least Thursday — the third such delay in two weeks.

And as the delays ex­tend, the cross-aisle rhet­or­ic is los­ing that lov­ing feel­ing of the re­cent past. Sen. Patrick Leahy, the Ver­mont Demo­crat who chairs the Ju­di­ciary pan­el, ac­cused com­mit­tee Re­pub­lic­ans of fail­ing to provide “con­struct­ive feed­back” on a pro­posed com­prom­ise meas­ure from Demo­crat Chuck Schu­mer of New York.

Sen. John Cornyn — a Texas Re­pub­lic­an at the fore­front of his party’s pro-pat­ent-re­form bloc — shot back, say­ing that ne­go­ti­ations have “de­veloped in­to a fight between Sen­ate Demo­crats.”

“Sen­at­or Leahy may have giv­en up, but I am happy to keep dis­cuss­ing this bill with the White House and a ma­jor­ity of House Demo­crats, in­clud­ing [Minor­ity Lead­er] Nancy Pelosi,” Cornyn said. “One ques­tion I have is if Sen­at­or Leahy has se­cured a com­mit­ment from Sen­at­or Re­id to bring his bill to the floor. Clearly he has the votes; does he have the com­mit­ment?”

Di­vid­ing the two parties is a “fee-shift­ing” pro­vi­sion that would re­quire the loser to pay the win­ner’s leg­al fees in a pat­ent-in­fringe­ment case where the law­suit is deemed to lack mer­it. Sup­port­ers, in­clud­ing Cornyn and fel­low Re­pub­lic­an Sen. Or­rin Hatch, say the meas­ure is cru­cial to re­du­cing ab­us­ive pat­ent trolling — when com­pan­ies buy cheap pat­ents and profit from them by threat­en­ing in­fringe­ment suits against oth­ers in hopes of set­tling.

But Schu­mer’s pro­pos­al lacked the fee-shift­ing teeth Re­pub­lic­ans want, sources say. And it’s un­clear how — or if — a con­sensus can be forged.

Weeks ago, these dif­fer­ences seemed em­in­ently amend­able. The com­mit­tee claimed their slow ap­proach re­flec­ted care­ful craft­ing of com­prom­ise, not fight­ing. And at the time, both Demo­crats and Re­pub­lic­ans were laud­ing Leahy for be­ing “wise” and delay­ing pat­ent-re­form con­sid­er­a­tion as ne­go­ti­ations were on­go­ing.

Now, the stake­hold­ers in the pat­ent-re­form de­bate can’t even agree on how well ne­go­ti­ations are go­ing.

One source close to the ne­go­ti­ations said Leahy’s fin­ger-point­ing could sug­gest he feels hopes for a deal are un­rav­el­ing, and wants to po­s­i­tion Re­pub­lic­ans for the blame if re­form ef­forts come com­pletely un­done.

But re­form ad­voc­ates quickly tried to down­play the road­b­locks, say­ing the ten­sion is tem­por­ary and pre­dict­ing the sen­at­ors would re­con­cile their dif­fer­ences.

“The re­ports out there that are doom and gloom do not jive with how staffers work­ing on the is­sue feel,” said Tim Spar­apani, vice pres­id­ent of gov­ern­ment re­la­tions for the App De­velopers Al­li­ance. “Not reach­ing a solu­tion is not pal­at­able to the mem­bers or their staff — we’re go­ing to get something worked out.”

Spar­apani ad­ded that only those who don’t want any pat­ent re­form passed — in­clud­ing en­tit­ies that claim they only op­pose one spe­cif­ic pro­vi­sion — are sug­gest­ing the sky is fall­ing on ne­go­ti­ations en­tirely.

Whatever the case, lob­by­ing for and against pat­ent re­form has spiked con­sid­er­ably over the past week, as a daunt­ing and di­verse swath of busi­ness in­terests in­clud­ing tech, uni­versit­ies, tri­al law­yers, and re­tail­ers have launched fi­nal pushes to keep their favored pro­vi­sions from get­ting axed — or en­sure cer­tain meas­ures don’t see the light of day.

The House quickly passed pat­ent re­form late last year, as Ju­di­ciary Chair­man Bob Good­latte quickly muscled his In­nov­a­tion Act through com­mit­tee be­fore earn­ing a sweep­ing bi­par­tis­an vic­tory when it came up for a vote on the House floor.

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