[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.