As Expected: Trial Lawyers Made A Huge Miscalculation In Killing Recent Patent Reform

from the have-fun-guys dept

Back in May, we wrote about how, despite pretty much everyone agreeing on a (decent, if not amazing) patent reform bill in the Senate, the whole thing got shot down at the last minute. That was when the trial lawyers called Senator Harry Reid, asking him to kill the whole thing, which he did by telling Senator Patrick Leahy that he wouldn't allow the bill to go to the floor for a vote. This came after months of detailed negotiations, getting nearly everyone into agreement on the bill, which would have made life at least somewhat more difficult for patent trolls. About a week after that, we pointed out that it seemed likely that the patent trolls had miscalculated badly, because it was widely expected that the Republicans would take control of the Senate in the fall (as they did), and they were more gungho on real patent reform and (obviously) not concerned with what trial lawyers think (mocking trial lawyers being a hobby of Republican politicians).

And, indeed, that prediction appears to have been quite accurate. Senator Orrin Hatch -- who is seen as something of a copyright maximalist though apparently doesn't feel that way about patents -- went on the attack against patent trolls in a floor speech.
Hatch doesn't mince words and flat out calls out the trial lawyers for killing the recent patent reform attempt. Furthermore, as Vox reports, other Republicans in the Senate appear eager to take on patent trolls, going even further than the legislation that was almost agreed to earlier this year. In fact, Hatch made it clear that he wants stronger fee-shifting in patent reform than what was in the last bill -- and that was the issue that most worried the trial lawyers. It was pretty obvious this was going to happen back in May. It's fairly incredible the trial lawyers (and Harry Reid) didn't recognize this at the time.

Hatch's speech touched on a few other issues -- some good, some bad. He's pushing new federalized trade secret laws. This is a really bad idea, which we'll be discussing in more detail later. However, he also supports ECPA reform -- something that we've supported for years and has never gone anywhere in Congress. He brought up some other important issues, including immigration for high skilled workers. So the speech was definitely a mixed bag, but it had a lot of good points (unless you're a patent troll or a trial lawyer).

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  • identicon
    David, 21 Nov 2014 @ 8:15am

    Huh?

    It's fairly incredible the trial lawyers (and Harry Reid) didn't recognize this at the time.

    Why should Harry Reid worry about the trial lawyers paying him for making a terrible mistake? Now they will have to dole out much more in order to rein it it again.

    As a lobby prostitute, you have to gain more by your customers not getting satisfaction the way they thought they would.

    reply to this | link to this | view in chronology ]

    • identicon
      JEDIDIAH, 21 Nov 2014 @ 9:07am

      Re: Huh?

      "Trial lawyers" are just a convenient scapegoat. They are a group that has been turned into an effective populist bad guy regardless of the situation.

      Meanwhile, the actual patent bar is a tiny subset of the bar in general because it requires special extra credentials. So I don't see your average ambulance chaser caring much about patent reform either way.

      Patent attorneys are the nerds of law and that is strictly enforced.

      reply to this | link to this | view in chronology ]

      • icon
        GMacGuffin (profile), 21 Nov 2014 @ 10:18am

        Re: Re: Huh?

        "Trial lawyers" are just a convenient scapegoat. They are a group that has been turned into an effective populist bad guy regardless of the situation.

        Meanwhile, the actual patent bar is a tiny subset of the bar in general because it requires special extra credentials.


        Agreed. As a business litigation attorney, I am a "trial lawyer" in the broad sense. The vast majority of trial lawyers, including myself, are not qualified to touch patent law. Further, the few patent attorneys I do know do not represent patent trolls. There are -- really, it's true -- actual inventors creating actual patentable products for market, and ethical patent attorneys out there to represent them.

        Of course patent trolls suck, but semantically, "patent bar" is a more accurate description and doesn't drag unrelated good guys into it.

        reply to this | link to this | view in chronology ]

        • identicon
          cpt kangarooski, 21 Nov 2014 @ 12:58pm

          Re: Re: Re: Huh?

          IIRC being a member of the patent bar is only required to prosecute (that is, apply for) patents before the PTO. I don't think that patent litigation requires that attorneys have any special qualifications beyond the norm.

          Instead it's just a bad idea due to lack of experience and relevant expertise, instead of formal qualifications.

          Now if only there were a copyright bar that required a degree in the arts to sit for….

          reply to this | link to this | view in chronology ]

          • icon
            GMacGuffin (profile), 21 Nov 2014 @ 2:42pm

            Re: Re: Re: Re: Huh?

            Looks like you're right that you don't have to be member of patent bar to litigate court cases involving patents.

            Nonetheless, lawyers do have an ethical duty to only take cases they are competent to handle. If one were actually competent to litigate a patent case, one would think they could pass the patent bar, and as such, would.

            From my frame of reference, non-patent attorneys don't touch patent issues. Because malpractice.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2014 @ 8:18am

    So... what am I supposed to get out of this?

    Politicians do this all the time to erm...

    Drum up cash from these 'threatened' businesses. The ping against the Trolls was an easy win so not worth any kudos in my book. His position on trade secret laws makes the whole thing bust in my opinion.

    Will wait until the final bill is once again sitting out for all to see... and hopefully will not be chained by last minute riders, pork, and loopholes!

    Yea, just because Obama got his chops busted does not mean the repukes are going to press forward swinging in favor of the American sheepizens that voted them in as a rebuke to Obama and the Dems.

    reply to this | link to this | view in chronology ]

  • identicon
    Jim, 21 Nov 2014 @ 8:25am

    Mike... holy hell that first "sentence"... I don't even know how to parse it. Please, less commas more periods!

    reply to this | link to this | view in chronology ]

    • icon
      Nom du Clavier (profile), 21 Nov 2014 @ 9:14am

      Re:

      Back in May, we wrote about how, despite pretty much everyone agreeing on a (decent, if not amazing) patent reform bill in the Senate, the whole thing got shot down, when the trial lawyers called Senator Harry Reid, asking him to kill the whole thing, which he did, telling Senator Patrick Leahy that he wouldn't allow the bill to go to the floor for a vote.


      Maybe you'll find it easier to read when structured as a patent?

      What is claimed is:
      1. A method and apparatus for patent reform comprising the steps of:
      (a) Use of a patent reform bill.
      (b) Having pretty much universal agreement in Senate.
      2. The method of claim 1 wherein the bill is decent, if not amazing.
      3. The method of claim 1 wherein trial lawyers call Senator Harry Reid, asking him to kill the whole thing.
      4. The method of claim 3 wherein the Senator follows through, comprising the steps of:
      (a) Killing the bill
      (b) Telling Senator Patrick Leahy that he wouldn't allow the bill to go to the floor for a vote.
      5. The method of claim 4, with optional gloating.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 21 Nov 2014 @ 10:27am

      Re:

      Mike... holy hell that first "sentence"... I don't even know how to parse it. Please, less commas more periods!


      You're right. Just tried to fix it. Ugh. Sorry. Was in a rush to get somewhere and... it shows.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2014 @ 8:28am

    'It's fairly incredible the trial lawyers (and Harry Reid) didn't recognize this at the time.'

    i'll hazard a guess that like so many other things that get stopped or advanced, depending on the subject, they knew what was going on and what was going to go on, but like to exercise the power they have, proving that the politicians have only what they are allowed and dont actually decide anything!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous, 21 Nov 2014 @ 8:36am

    Just Big Money infringers

    Patent Reform should just simply be called litigation reform, because it's not doing anything to the patent system. Patent Reform is being pushed by Google and other big companies who continues to steal ideas. Gee, who's going to be the new head of the USPTO? To be better informed, read here:

    http://www.forbes.com/sites/realspin/2014/11/11/real-patent-reform-should-strengthen-property-r ights-not-weaken-them/

    reply to this | link to this | view in chronology ]

    • icon
      Geno0wl (profile), 21 Nov 2014 @ 8:46am

      Re: Just Big Money infringers

      go away troll

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 21 Nov 2014 @ 9:03am

        Re: Re: Just Big Money infringers

        There was nothing trollish about that comment. He stated his opinion clearly and politely.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Nov 2014 @ 9:09am

          Re: Re: Re: Just Big Money infringers

          Remember... troll has changed to anyone posting something you don't like on the internet..

          ergo... we are all trolls. So I don't even worry about the word anymore because it has lost all meaning.

          You have 2 choices... responds to the idiots or not... responding might feed a troll, but you still may enlighten another curious/unsure individual reading your response.

          A more appropriate term of 'shill' might have followed proper syntax for our "Troll Skreeming" friend here.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 21 Nov 2014 @ 10:11am

            Re: Re: Re: Re: Just Big Money infringers

            He's being a troll because he's dishonestly misusing the word 'steal'. Even if the idea was copied that's not stealing and there is nothing morally wrong with copying.

            The idea of IP law should not be to prevent this person's perverted definition of 'stealing'. No one is entitled to a government monopoly privilege (or anything the government provides) and if the privilege makes society worse off then those who are privileged are not contributing to society but are effectively stealing from it (taking that which is not owed to them, a monopoly privilege, without contributing back the value of what is being taken). IP should be about promoting the progress and serving the public interest. That this commenter has made it into something else entirely is arguably the biggest reason to abolish IP law altogether.

            reply to this | link to this | view in chronology ]

        • identicon
          RD, 21 Nov 2014 @ 10:07am

          Re: Re: Re: Just Big Money infringers

          Oh, so being polite allows him to spew specious arguments and falsehoods, and thats acceptable as long as people are being polite?

          Troll behavior is troll behavior, even if it's wrapped in sweet talk. As proof, see EVERY politician, ever.

          reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 21 Nov 2014 @ 12:29pm

            Re: Re: Re: Re: Just Big Money infringers

            He wasn't making an argument, he was stating his opinion. Yes, I do think that just stating your opinion is allowable and not trollish if you aren't being an asshole about it. Whether or not anyone agrees with that opinion doesn't enter into it.

            reply to this | link to this | view in chronology ]

    • identicon
      Bengie, 21 Nov 2014 @ 8:51am

      Re: Just Big Money infringers

      Ideas can be stolen?! What next, someone will steal my feelings?! I'll never feel again!

      reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 21 Nov 2014 @ 8:56am

      Re: Just Big Money infringers

      **Advertisement**

      Tired of Trolls invading your forum? Having to put with their brain-damaged texts?

      Well, no more! Acme's Troll-Away(tm)(c)(p)(m-o-u-s-e) will send those mutants scurrying for the dark.

      Just use Troll-Away's secret, patented forumula of dihydrogen-oxygen on your monitor and off they go!

      *Troll-Away is not responsible for anything..nope, nothing. Any bad reviews will be met Roca-style litigation.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Nov 2014 @ 9:02am

        Re: Re: Just Big Money infringers

        ha ha ha... I remember the petition for it too.. just to prove a point.

        People are such tools...

        reply to this | link to this | view in chronology ]

    • icon
      OldMugwump (profile), 21 Nov 2014 @ 9:44am

      Re: big companies who continues to steal ideas

      1) Coming up with your own idea independently is not stealing. (Even if you were not the first to ever think of it.)

      2) Ideas are a dime-a-dozen, as any VC will be happy to explain, and de minimis non curat lex. (The law does not concern itself with trifles.)

      Implementation and execution are what have value.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2014 @ 10:06am

      Re: Just Big Money infringers

      Just because some random person(s) came up with an idea before Google had time to implement it doesn't mean Google 'stole' it. Ideas take time and resources to implement and are virtually free and take relatively little time to come up with. Anyone can sit around all day and come up with ideas. Nothing special there and nothing worthy of a monopoly on those ideas.

      reply to this | link to this | view in chronology ]

      • identicon
        JEDIDIAH, 21 Nov 2014 @ 1:39pm

        Re: Just Big Money infringers

        ...and even if Google did "steal" it then so what? It only matters if they are trying to claim ownership. The only real right you have with creative works is being credited. Even that only comes in if something was derived or inspired from your work.

        Independent re-invention is common once the creative zeitgeist has been primed for it. It's like filling a beaker with the right chemicals and some lightning. You will end up with the building blocks of life. It's a deterministic process.

        Brainstorms from the zeitgeist really shouldn't be patented by they are far more credible than most of the completely trivial nonsense that gets patented these days.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2014 @ 10:17am

      Re: Just Big Money infringers

      Patents should only be about the public interest and not about your perverted definition of stealing. and Google has done a lot more for the public interest than you have I'm sure.

      I use their search engine
      I use Google maps
      I use their gmail services

      I benefit from all these and their services are better than the next guy.

      So what have you done?

      If Google wants patent reform then that's reason enough to consider the option.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Nov 2014 @ 10:18am

        Re: Re: Just Big Money infringers

        and lets not forget I use their Youtube services (often for educational reasons; Ie: people use it to post videos on Chemistry and other topics).

        Again, what have you done?

        reply to this | link to this | view in chronology ]

    • identicon
      IP Lawyer, 21 Nov 2014 @ 10:31am

      Re: Just Big Money infringers

      Bullshit.

      "Ideas" are not, and should not, be subject to IP protection, and they have virtually no value.

      Execution is what matters most.

      It is sincerely unlikely you are in the software business if you do not understand this distinction.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Nov 2014 @ 12:10pm

      Re: Just Big Money infringers

      Remember, we had fully wireless electricity as a possibility over 100 years ago. We're just now rediscovering this.

      Everything is a rehash of a repost of a rejig.

      reply to this | link to this | view in chronology ]

  • icon
    Geno0wl (profile), 21 Nov 2014 @ 8:42am

    Never understood Copyright vs Patents

    So an engineer mu "claim" to my works are thrown aside for the "betterment" of society after 20 years.
    But some high school dropout who strums up a guitar in just the right way to catch the right tune can not only potentially live the rest of his life on that, but feeds his children's children on it too.
    Now a song and a new type of circuit board as two very different things, and they should be treated as such.
    But how can somebody like Senator Hatch look at you straight in the face and claim we "need" 100+ years of protection for one thing to promote innovation but then turn around and say 20 years for this other type of innovation is just fine?
    On its face this is inconsistent worldview.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2014 @ 8:58am

      Re: Never understood Copyright vs Patents

      Because its fucked up that why! And because the "Bad" Senator from Iowa...(damn sure not good) is a paid prostitute for the MafiAA crowd!

      After 14 years... it should be public domain.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2014 @ 9:24am

      Re: Never understood Copyright vs Patents

      It's not inconsistent at all, you're just looking at it from the wrong frame of reference.

      A prostitute who services KKK members and Black Panther members does not have an inconsistent world view - she just takes money from whoever will pay.

      Same with Senators. They'll write and support laws from whoever pays them the most.

      reply to this | link to this | view in chronology ]

    • icon
      OldMugwump (profile), 21 Nov 2014 @ 10:03am

      Re: Never understood Copyright vs Patents

      I'll explain.

      Patentable inventions are more-or-less inevitable. If person A doesn't invent a thing, eventually Person B will invent the same thing. Maybe 6 months later (if it's a bad patent), maybe 20 years later (if it's a good patent). But eventually.

      Copyrightable works (books, music, etc.) are not inevitable. If The Rolling Stones didn't record Satisfaction, nobody ever will. If Neal Stephenson didn't write Cryptonomicon, then nobody ever will. Ever.

      The (supposed) benefit to society from patents is to accelerate technological progress, by making inventions public sooner. [Our present implementation seems to instead make things worse, but that's the idea behind it.]

      The (supposed) benefit to society from copyrights is to encourage authors and artists to create, by giving them a way to profit from that creation. This also doesn't work very well anymore (we need a new method, yet it did work OK before computers made things easy to copy). But that's the idea.

      I don't support the status quo implementation of either patent or copyright law - a reasonably good idea has become perverted - but there is a very good rational reason why copyrights are longer than patents.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2014 @ 10:07am

      Re: Never understood Copyright vs Patents

      You're right. Copyright should be limited to about the same time frames as a patent.

      reply to this | link to this | view in chronology ]

  • identicon
    mcinsand, 21 Nov 2014 @ 9:02am

    I like your optimism, however...

    I would much rather believe that you are right. However, our political parties are nothing more than prostitutes for the various lobbying apparati,so I'm betting this is just a negotiation tactic; 'you may have been able to buy Ried et al for that much, but the price just went up.'

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2014 @ 9:51am

    It could just be the case that he wants to push through these trade secret laws and patent reform laws on the same bill to get more public support and, at the last minute, the patent reform portions will somehow be redacted. Yes it sounds sinister and unlikely but given the history of congress making undesirable last minute changes ...

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 21 Nov 2014 @ 10:47am

    He's pushing new federalized trade secret laws. This is a really bad idea, which we'll be discussing in more detail later.

    Here's a good federal trade secret law: Thou Shalt Not Have Trade Secrets. Anything less than that, I would oppose.

    Patents and copyrights are both based on good ideas that did very useful things for our society. We owe the Industrial Revolution, almost in its entirety, to patents. Since then, those who profit from patents and copyrights have taken the concepts and corrupted them, but they could still be reformed, restored to their original purity, and be something good.

    Trade Secrets, on the other hand, have no redeeming virtues and need to be done away with.

    reply to this | link to this | view in chronology ]

  • icon
    Rocco Maglio (profile), 21 Nov 2014 @ 12:13pm

    Trail Lawyers are the Market solution

    I find it interesting that many Republicans are against trial lawyers. Trial lawyers allow the market to punish badly behaving individuals and companies. If you remove this market, you have to add regulators to make sure that individuals and companies are punished and removed from the market. In thiis instance the Democrats are generally pro market and the Republicans are pro regulators.

    For instance, say a doctor rapes some of his patients while working at a clinic. The clinic had several reports of this and did nothing. Currently that would be settled by suing the clinic. If that option is removed, there would have to be more regulation to stop the clinic from acting in this manner. Regulators would be needed to shutdown the clinic if it continued to allow this behavior.

    reply to this | link to this | view in chronology ]

    • identicon
      JEDIDIAH, 21 Nov 2014 @ 1:45pm

      Re: Trail Lawyers are the Market solution

      Bingo. Civil Courts are law enforcement of last resort. If someone does you harm, the cops and the FBI may blow you off. Civil litigation allows you to persue the matter in a civilized manner. Contingency work gives people access to representation that would not otherwise have it.

      There have been doctors lynched in rural counties where tort reform made lititation less than useful.

      reply to this | link to this | view in chronology ]

    • identicon
      Pragmatic, 26 Nov 2014 @ 5:52am

      Re: Trail Lawyers are the Market solution

      Trial lawyers allow the market to punish badly behaving individuals and companies. If you remove this market, you have to add regulators to make sure that individuals and companies are punished and removed from the market.

      reply to this | link to this | view in chronology ]

      • identicon
        Pragmatic, 26 Nov 2014 @ 5:57am

        Re: Re: Trail Lawyers are the Market solution

        There is no such thing as the free market. And when you litigate over IPR you'd better have deep pockets since it doesn't matter whether you win or lose; they can just keep dragging you into the courts till you either settle or run out of money.

        Market forces won't get you out of it and they are doing nothing to change this fact because people believe there is such a thing as intellectual property. No, patents, copyright, and trademarks are monopolies. Patents and copyrights are supposed to last for a limited time. And since monopolies are a protectionist measure that distorts the market, the market isn't free.

        reply to this | link to this | view in chronology ]

  • identicon
    Cynical Mac Bastard, 21 Nov 2014 @ 2:32pm

    Hatch's Speech

    Is Hatch's speech really a cry for patent reform, or a polite request to the trial lawyers to pony up some more big money to stop patent reform? Money for Republicans this time.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 21 Nov 2014 @ 6:26pm

      Re: Hatch's Speech

      Little of column A, little of column B I'd say.

      If they did fork over some generous 'campaign donations' in response I imagine he's start talking about 'compromise' and 'not upsetting the system more than absolutely needed', and if they don't, hey, easy PR.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2014 @ 2:43pm

    Hopefully the bill will pass shortly after Reid does.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2014 @ 2:44pm

    That comment was not in reference to his mortal status not elected one. I wish him gone, not dead.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Nov 2014 @ 9:50am

    I can't help but think Senator Orrin Hatch, is running a campaign asking/demanding money from the patent industry. Or else.

    reply to this | link to this | view in chronology ]


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