[rayiner]

I think you're understating the degree to which the formation of the Partnership for American Innovation, and similar efforts, sucked a lot of the air out of the reform effort. PAI's official position is that they're trying to endorse the fundamental soundness of the existing system, not support or oppose any particular legislation. But c'mon: how else should we interpret an endorsement of the soundness of the existing system right as legislative efforts are underway to change it significantly?

This is the press-release for their formation, posted last month: http://partnershipforamericaninnovation.org/announcement ("To date, the conversation around patents has been dominated by those seeking to curtail America’s strong system for narrow, short-term gains. Companies like those in the PAI support a strong, balanced system and are working together to make sure the conversation is driven by facts, not rhetoric, and reason rather than emotion.")

This is PAI's most recent blog post, from 10 days ago: http://partnershipforamericaninnovation.org/belief-patent-sy.... It's titled, "The belief that our patent system is broken is patently false." It leads with: ("If you listen to some commentators on the subject of patents, you could form the belief that the patent system is irreparably broken. According to these arguments, 'patent trolls' are bringing businesses to a complete halt and that software patents are a barrier to innovation. Some pundits even equate 'patent troll' litigation with the legitimate legal interests of inventors who are defending their intellectual property.")[1]

To me, these read as a pointed rejections of the arguments used by proponents of the Senate bill, timed to have maximum impact on the members of Congress working on the bill. You're right that these companies don't suffer from troll suits and so don't have an investment in getting fully behind reform. But these messages, timed the way they were, did a lot more than simply declare an intention to sit out the debate.

[1] Note that statements like these do not get posted on a joint-blog without extensive scrutiny and sign-off by all the companies involved.

[AnthonyMouse]

I don't see how that's any different than what I wrote. Companies outside of the software industry don't think patent trolls are a problem because their industries aren't beleaguered with patent trolls. They don't have the problem so they don't care about fixing it.

Notice the absence of criticism of the proposed reforms. They're not providing any reasoned critique of the proposed solution or suggesting any alternative way of dealing with patent trolls, they're just denying the existence of the problem because they don't experience it.

[rayiner]

The title of this thread is about who killed the reform effort. You're saying its the trial lawyers. But they've opposed this from the beginning. What card did they pull in the last few weeks they couldn't pull before?

Meanwhile, in the last month, these companies come out and endorse the status quo, and criticize the motivation behind the proposed reforms if not the specific terms. They come out and say, just in the last month, that "we think the current system is fine." Now, everyone opposed to the reform can wave these comments in front of the faces of everyone still on the fence. "See, we told you, the system is fine!" When you're talking about a reform bill, an endorsement of the status quo is almost the same as outright opposition to reform.

If PAI didn't intend to kill the bill, they sure as hell handed the trial lawyers a gift-wrapped present.

[AnthonyMouse]

I'm not saying they like the bill. They have very little incentive to support it and all else equal change is risk. Releasing a statement to that effect doesn't cost them anything. But somebody leaned pretty hard on somebody yesterday to stop something everybody else thought was happening, and I don't think the smart money is on DuPont or Ford being that somebody.

[rayiner]

That's the EFF's narrative, but I don't think it's very accurate. Here's a more comprehensive article detailing what happened: http://www.politico.com/story/2014/05/patent-reform-senate-1....

It wasn't just trial lawyers leaning on Leahy at the last minute to kill a bill that was going to pass. There were five previous attempts in committee to bring the bill up for a vote. Today would've been the sixth attempt. The tech industry was never on the same page about the specific reforms, which hampered the pro-reform side.

The morning the bill was killed, "several groups opposing the bill denounced those provisions, promising they would be united in their opposition to any bill that included them. 'Many of the provisions would have the effect of treating every patent holder as a patent troll,' read a letter sent out by the Innovation Alliance, which was signed by the American Association of Universities and the biotechnology trade group BIO." http://arstechnica.com/tech-policy/2014/05/gridlock-strikes-.... The Innovation Alliance includes, among other members, companies like Qualcomm and Dolby.

[AnthonyMouse]

The politico article is consistent with the same narrative. The Republicans are blaming the trial lawyers exclusively. The Democrats aren't even denying their involvement, they're just trying to spread the blame more broadly because the general public is more sympathetic to the plight of biotech researchers than trial lawyers.

They're even describing loser pays as the main point of contention, which is of primary concern to trial lawyers. If you have a clear case of infringement then loser pays is irrelevant because you won't lose. But if you have a clear case of infringement then there is no trial anyway, because it's just as clear to the defendant. The large majority of legitimate cases of infringement and licensing are already handled outside of court, which is why loser pays has minimal effect on holders of legitimate patents. But loser pays would stab the trial lawyers in the face, because nobody goes to trial with strong patents, and loser pays would reduce the inclination of plaintiffs to go to trial with weak patents. Which is the whole point of loser pays.

[rayiner]

I don't think you're fairly summarizing the Politico article. It does cite trial lawyers as a key reason:

> One of the biggest friction points was over fee shifting, the idea of making the losing party in patent lawsuits pay the winner’s legal fees. Republicans on Senate Judiciary and pro-reform groups made it a top goal, but some Democratic members and trial lawyers warned that fee shifting could keep companies from pursuing legitimate lawsuits.

But it goes on to say:

> Earlier this month, Senate negotiators began to coalesce around compromise language from Sens. John Cornyn (R-Texas) and Chuck Schumer (D-N.Y.) that included milder litigation reforms. That effort, however, frayed as universities and other major patent holders argued the measure would have negative consequences for the patent system.

It's Politico saying that universities and other major patent holders also argued against the measure, not Democrats.

> Senate Majority Leader Harry Reid (D-Nev.) played a decisive, behind-the-scenes role in the legislation’s fate, according to sources on and off the Hill. Reid told Leahy he could not put the bill on the floor given the opposition from trial lawyers, pharmaceutical companies and biotechnology giants, the sources said. Reid’s office did not comment for this story.

You characterize this as Reid simply trying to "spread the blame" but it wasn't the trial lawyers that sent a letter to Leahy the morning the bill was killed. From the ArsTechnica article linked above:

> Early this morning, several groups opposing the bill denounced those provisions, promising they would be united in their opposition to any bill that included them. "Many of the provisions would have the effect of treating every patent holder as a patent troll," read a letter sent out by the Innovation Alliance, which was signed by the American Association of Universities and the biotechnology trade group BIO.

Your point about fee-shifting is absolutely wrong. Universities and small patent-holders oppose it, because litigation is always uncertain even when you've got a good case overall. You can never be sure what'll happen in a Markman hearing, or what a jury will do, or whether all your claims will hold up in light of developments that arise over the course of litigation. This is particularly true because the law requires you to bring all your claims at once, or forfeit the ones you don't bring. The plaintiff ultimately bears the burden of proof, and just because he can't meet that burden for every claim doesn't mean he brought any of them in bad faith.