Patent News

Apr. 8, 2014

National Journal: The Fellowship of the Patent Troll Hunters Is Breaking, by Dustin Volz

This article originally appeared in the National Journal on April 8, 2014.

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.