Why The Trial Lawyers May Have Miscalculated In Killing Patent Reform, And How It May Come Back To Bite Them

from the better-patent-reform-next-year dept

As we noted last week, it was really the trial lawyers (with some help from pharma) that killed patent reform. While patent trolling operations and some big legacy companies with giant patent portfolios had been fighting against patent reform all along, they weren't responsible for killing it outright. In fact, in talking to many people involved, the same story comes up again and again: pretty much everyone was negotiating on a deal -- and, at the last minute, the trial lawyers called Harry Reid, who told Leahy to kill the bill. Joe Mullin quotes a tech industry lobbyist who notes that "I feel like a mouse who never knew he was a mouse," and that despite all the negotiating, the trial lawyers just put an end to it:

"We felt really good the last couple of days," said the tech lobbyist. "It was a good deal—one we could live with. Then the trial lawyers and pharma went to Senator Reid late this morning and said that's it. Enough with the children playing in the playground—go kill it."

Some have asked why trial lawyers (rather than patent lawyers) were so against it, and the key thing is that the trial lawyers don't want anything to do with fee shifting. They fear, greatly, that if fee shifting is shown to be effective in patent cases, it will then make it easier to spread to other types of cases. This isn't a huge surprise. Nearly a year ago, a high ranking Democratic Congressional staffer told me flat out that "fee shifting has to be off the table" because "the trial lawyers will never allow it." I was actually surprised that it stayed in the bill as long as it did.

But here's the thing: having the trial lawyers kill the bill outright may be incredibly shortsighted. That's because this bill was already pretty weak overall. All that "bipartisan negotiating" and lobbying pressure from patent trolling operations (and big tech firms who didn't want to lose the ability to exploit giant portfolios of bad patents) had basically weakened this bill drastically already. Even the fee shifting was pretty limited and unlikely to have a huge impact.

But the problem of patent trolls still remains.

And here's the big thing. The Republicans are very much in favor of patent reform, and many prognosticators expect the Republicans to take control of the Senate in this year's elections. As lawyer Matt Johnson points out, with the Republicans in control over both houses, much stronger patent reform might go through in the next Congress, and there won't be much the trial lawyers will be able to do about it. Republicans aren't known for bending to the whims of trial lawyers.

In the interest of making a deal with Democrats this year, Cornyn offered major concessions on fee-shifting, heightened pleading, and discovery abuse during his negotiations with Sen. Chuck Schumer (D-NY). Those concessions won’t necessarily be on the table next year in a GOP-controlled Senate. And House Judiciary Chairman Bob Goodlatte may similarly be unmotivated to make concessions with Democrats in his chamber. Moreover, the trial bar certainly can’t count on the President to be a backstop. President Obama has championed many of the litigation reforms they oppose, including loser-pays and heightened pleading standards.

Reform opponents made the calculation that they’ll take their chances in 2015 rather than swallow a bipartisan compromise this year.

As he says, "this year’s Schumer-Cornyn deal is probably as good as it gets" for those looking to limit patent reform. Next year, the trial lawyers may be able to call Harry Reid, but it might not matter at all.

Filed Under: congress, harry reid, patent reform, patent trolls, patents, patrick leahy, trial lawyers

Can Senator Leahy Actually Get Anything Done To Help With Civil Liberties And Innovation?

from the weakest-'powerful'-senator dept

Senator Patrick Leahy is often considered one of the most powerful Senators. He's the most senior Senator, third in the presidential line of succession (after the VP and the Speaker of the House) and the head of the powerful Senate Judiciary Committee. He's often presented as a "friend" to both the technology and civil liberties communities -- even though many in both of those communities still view him skeptically for his all out support for dangerous copyright legislation in the PROTECT IP Act (PIPA), which would have seriously messed with the underlying DNS structure of the internet. Even so, on a variety of other issues, including NSA reform, ECPA reform and patent reform, he's often been seen as leading the charge.

But over and over again, it seems that charge is... to go nowhere.

Politico has a story about how last week was a disaster for the tech industry in Washington DC. For all the talk about how Silicon Valley has been flexing its lobbying power, patent reform was killed, a good NSA reform bill was replaced with a bad one (leading the tech industry to pull its support) and the fight for immigration reform went the way it normally does -- nowhere beyond people yelling at each other.

But what I found even more interesting is just how powerless the "powerful" Senator seems to be on so many of these issues. Leahy has been the leading Senate voice for ECPA reform (requiring a warrant to search your electronic data) for years -- and it has pretty widespread support. And yet, he's unable to get it to move forward because the the SEC and IRS want to be able to read emails without a warrant. Really?

Similarly, for over a decade, Leahy has been the point person on patent reform in the Senate, promising to finally reform the system to stop abusive patents. The bill he finally got through in 2011 did absolutely nothing after it was watered down and watered down and watered down some more. And this year, when it looked like there might finally be a bill with at least a little (not nearly enough) progress towards stifling abusive patent practices, he got completely shut down by the trial lawyers and Harry Reid.

And, now we're basically relying on Senator Leahy to fix the NSA reform package. He introduced the companion to the USA Freedom Act in the Senate, and many in the tech and civil liberties communities are hopeful that Leahy will stand firm in actually reforming the NSA. And while he's been saying all the right things about reforming the NSA, given his track record, you have to start to wonder: can this super powerful Senator actually get this done right?

Yes, getting anything done in Congress is a pretty difficult process these days (perhaps for good reason). But we keep hearing about how Senator Leahy is so powerful and such a friend to innovation and civil liberties. But over the past few years, it's been a lot of tough talk, and nothing ever seems to actually get done. It really begins to make you wonder if he's such a "friend" to these communities after all.

Filed Under: civil liberties, ecpa, ecpa reform, patent reform, patents, patrick leahy, politics, senate judiciary committee, usa freedom

Harry Reid Bows Down To Trial Lawyers And Big Pharma In Killing Patent Reform

from the same-old-story dept

Tuesday evening, I had a discussion with a friend who was working on patent reform efforts. I said that the reform effort was dead, but my friend insisted that it was being negotiated as we spoke, and that the folks working on it wouldn't be doing so if it died. But, of course, by Wednesday morning it really was dead, and basically everyone who had been working hard on it pointed their finger at one person: Harry Reid. Within minutes of Leahy announcing that patent reform was dead, a whole bunch of people reached out to all say it was Reid's fault. And, that story got out fast. Basically everyone is saying that Harry Reid called Leahy and told him to kill the bill after trial lawyers and the pharmaceutical industry complained to Reid. Reid, fearing a loss in donations from those groups that often support Democrats in an election year, killed the bill.

Most of the reports said that Reid told Leahy he wouldn't allow the bill to come to the floor, but we heard a slightly different story: Reid didn't want it to come to the floor, and if it passed out of the Senate Judiciary with strong bipartisan support, he would be forced to bring it to the floor. That's why it was killed before it even had the chance, and Leahy had to pull it off the agenda without even allowing the Judiciary Committee to vote on it.

This is politics as usual. The same groups killed patent reform efforts in 2004, and basically every two years after that until they got a watered down bill in 2011. Unfortunately, if the same pattern holds, we may not see patent reform until 2021, by which time it too will likely be useless. And all the while actual innovation and our economy suffers.

Filed Under: harry reid, leadership, patent reform, patent trolls, patents, patrick leahy, pharmaceuticals, senate, trial lawyers

Looks Like Patent Trolls Have Won This Round As Even Weakened Patent Reform Likely To Die

from the history-repeats-itself dept

We suggested this was likely last month, but after two months of the Senate Judiciary Committee promising to move forward with its (increasingly weakened) patent reform bill, reports are that the bill is set to die thanks to patent trolls and patent lawyers ramping up their lobbying efforts. There has been some talk that Leahy may still bring forward a manager's amendment that has completely watered down the bill into being totally useless, but even that might not happen:

According to a tech industry source, Leahy has changed his position in part as a result of pressure from the Coalition for 21st Century Patent Reform, a lobbying group whose law firm Akin Gump recently hired Leahy’s long time chief-of-staff. The source added that Leahy is prepared to let the reform bill founder, and then draw political cover by casting blame for the failure on committee members’ inability to produce a suitable compromise. Meanwhile, the bill’s momentum has also been sputtering as a result of the trial lawyer bar pressuring other Senate Democrats to slow the bill.

This account of the Senate patent bill’s slow death is consistent with a source cited by Reuters, who said “It’s somewhere between sinking like a rock and air going out of it, like a balloon,” 

Oh, that revolving door. Helping patent trolls. Also, note that everything fell apart just as... Intellectual Ventures ramped up its political contributions. I'm sure that's just a coincidence, right?

And, of course, even if something does get squeezed out, much of the important stuff has already been wiped out of the bill. Late last year and earlier this year, most of our focus was on making sure that the covered business method provisions stayed in the bill, but we've been told they're long gone. This was the part of the bill that would allow the Patent Office to more quickly review business method and software patents to make sure they were legit. This already exists for certain financial patents, and it's been shown to be effective in tossing out bad patents. There is no reason to oppose this unless you have a bunch of bad patents... so of course, bad patent hoarders like Microsoft, IBM and Apple freaked out about it.

But even more basic ideas for stopping patent trolls are being stripped from the bill as well, according to Jeff Roberts over at GigaOm:

Staff members of the Senate Judiciary Committee, who did not want to be named, said by phone that the hold up is due to disagreements over two new points of contention: a provision that would require patent plaintiffs to provide detailed descriptions of alleged infringement in the pleadings they file, and one that would alter the legal process known as discovery (in which each side has to produce documents and witnesses). The latter reform is important because patent trolls rely on the economic asymmetries of patent litigation — especially the threat of discovery, which is extremely time-consuming and expensive — to force their victims into settlements.

These proposed pleading and discovery reforms have until now been uncontroversial.

If you've been following the patent reform space for more than a decade, you'd recognize this pattern. Back in 2004, Senator Leahy had introduced a semi-decent (not great, but not horrible) patent reform bill... and the trolls (and pharmaceutical companies) went apeshit over it, killing it. Every new session of Congress, a new version would be introduced that would be watered down to appease the pharmaceutical companies. Seven years later, the America Invents Act was finally passed... once it had been stripped of basically all useful provisions. It did absolutely nothing to deal with the problems of the patent system (and actually may have created a few new ones).

Unfortunately, it looks like we may have a few more years of this kind of crap, and no actual end in sight to patent trolling. It's pretty clear that companies that abuse the patent system are now abusing the political process to make sure they can extract more cash from those who are actually innovating. It's profitable to destroy our innovation economy, apparently, so why not spend it on buying politicians who won't stand up for what's right?

Filed Under: discovery, lobbying, patent reform, patent trolls, patents, patrick leahy, politics
Companies: intellectual ventures

Senator Leahy: If President Obama Is Serious About Ending Bulk Collection, He Can Just End It This Friday

from the easy-peasy dept

As expected, President Obama outlined basic plans for ending bulk collection of phone records. While the actual details of the plan still haven't been revealed, apparently, the administration has some "enabling legislation" ready to go, which it hopes Congress will pass "quickly." In response to this, Senator Patrick Leahy pointed out that while he's very supportive of the move to end bulk collection of phone records, there's a much easier way to accomplish that. The authority to do so technically runs out on Friday of this week, so if the President wants to end the program, he can just not seek to renew the authority:

I look forward to having meaningful consultation with the administration on these matters and reviewing its proposal to evaluate whether it sufficiently protects Americans’ privacy. In the meantime, the President could end bulk collection once and for all on Friday by not seeking reauthorization of this program. Rather than postponing action any longer, I hope he chooses this path.

Anyone setting odds on the likelihood of this actually happening?

Filed Under: authority, barack obama, bulk collection, nsa, patrick leahy, phone records, section 215, surveillance

Senator Leahy Tries To Sneak Through Plans To Make Merely Talking About Computer Hacking A Serious Crime

from the that's-not-good dept

You may have heard about the recent high-profile, malicious hack of Target's point of sale systems, giving the attackers access to the details of at least 40 million credit cards. Senator Patrick Leahy is, incredibly cynically, using this news event to try to sneak through a change to the "anti-hacking" law, the CFAA, which was used to prosecute Aaron Swartz and many others. And it's not a change to improve that law, but to broaden it, extending massively how the DOJ can charge just about anyone they want with serious computer crimes. This is monumentally bad, and Senator Leahy is trying to hide it behind a major news event because he knows he couldn't get this kind of DOJ wishlist through without hiding it.

Officially, this is Leahy reintroducing his Personal Data Privacy and Security Act -- a bill he's tried to introduce a number of times before. The crux of that bill makes some sense: requiring companies that have had a security breach to inform those who were impacted. State laws (most notably, California's) already include some similar requirements, but this is an attempt to create a federal law on that front. There are some reasonable concerns about such a law, but the general idea of better protecting the public from data breaches, by at least letting them know about it, is an idea worth considering.

The problem is that Leahy has inserted a couple of other dangerous bits and pieces into the bill, including a couple of "reforms" to the parts of the CFAA that have raised significant concerns, and burying them deep within this bill. Section 105 of the bill, for example, simply repeats the same change that the House Judiciary tried to include last year in an attempt at bad CFAA reform. It's basically part of the DOJ's wishlist, changing the CFAA to make you guilty of violating the law if you merely "conspire or attempt to commit" the offense, rather than if you actually do commit the offense. It may be difficult to understand if you just read the proposed bill (this is on purpose), but the bill says it wants to include the term "for the completed offense" so that the CFAA now reads:

Whoever conspires to commit or attempts to commit an offense under subsection (a) of this section shall be punished as provided for the completed offense in subsection (c) of this section.

Right now, the law does not include those four words. Why is that a big change? As we explained last year:

All they did was add the "for the completed offense," to that sentence. That may seem like a minor change at first, but it would now mean that they can claim that anyone who talked about doing something ("conspires to commit") that violates the CFAA shall now be punished the same as if they had "completed" the offense. And, considering just how broad the CFAA is, think about how ridiculous that might become.

While the proposed bill does include a further change that notes that merely violating a terms of service agreement does not make you subject to the CFAA, it's not just the TOS issue that concerns so many people about the CFAA.

The CFAA needs to be greatly scaled back, not expanded, no matter what the DOJ wants. It's ridiculous that Senator Leahy is not only proposing this, but then trying to hide it in this bill about security breach reporting, tying it to a news event.

Filed Under: aaron swartz, cfaa, conspiracy, criminal, data breach, patrick leahy
Companies: target

What The USA FREEDOM Act Doesn't Fix

from the lots-more-to-go dept

We've discussed the USA FREEDOM Act, introduced in the Senate by Senator Leahy and in the House by Rep. Sensenbrenner a few times now, pointing out that it really does look to rein in the worst of the NSA's abuses. It also has the best chance of any proposal to date of getting passed. That doesn't mean the bill is perfect, and it has plenty of problems. The good folks over at EFF have given some conditional support to the bill, noting that it "would be a substantial improvement to America’s laws regarding mass surveillance" and does a bunch of very important things in response to the overreach by the US government.

However, the group notes, the bill should be a "floor, not a ceiling." That is, it needs to be a starting point, because there are all sorts of problems it doesn't yet fix.

The bill only addresses a small portion of the problems created by NSA spying and overreaching government secrecy. It does not touch problems like NSA programs to sabotage encryption standards, it does not effectively tackle the issue of collecting information on people outside of the United States, and it doesn't address the authority that the government is supposedly using to tap the data links between service provider data centers, such as those owned by Google and Yahoo.

The bill also does not address a key issue that the government uses to inhibit lawsuits contesting the spying: excessive secrecy. For instance, it won't deal with the major over-classification issues or the state secrets privilege, the latter of which is used aggressively to prevent litigation from getting to a court decision on whether the spying is unconstitutional. The bill also leaves out a clause appearing in Sen. Ron Wyden's bill, which provides guidelines to obtain standing in legal cases against the spying.

Lastly, it does not hold public officials accountable for their role in allowing this spying to take place and hiding it from public and Congressional oversight, and it does not create a Congressional committee that could independently investigate the surveillance programs and give the country a full accounting. Remember we are still just learning the full depth of the programs on a piecemeal basis.

I know that some people would prefer bills that do in fact cover all of that, and are against the USA FREEDOM Act for not going nearly far enough. There is, also, quite a legitimate fear that there is likely to only be appetite for one bill in Congress, so if the USA FREEDOM Act passes, all of the other missed issues will never get addressed. That's a legitimate fear, but it's going to be difficult enough to get the USA FREEDOM Act approved in the first place, and if people fight against it just because it doesn't include everything, there's a decent chance we'll get nothing at all.

Filed Under: jim sensenbrenner, nsa, patrick leahy, surveillance, usa freedom act

Major New Anti-NSA Bill Dropping Next Week With Powerful Support

from the this-could-get-interesting dept

We already knew that Rep. Jim Sensenbrenner was getting ready to release a major new anti-NSA spying bill called the USA Freedom Act, and Derek Khanna has just revealed many of the details of the bill, scheduled to be introduced in both houses of Congress this coming Tuesday. It will be backed by Sensenbrenner in the House and Pat Leahy in the Senate, and will have plenty of co-sponsors (already about 50 have signed up) including some who had initially voted against the Amash Amendment back in July. In other words, this bill has a very high likelihood of actually passing, though I imagine that the intelligence community, and potentially the White House, will push back on it. For Congress, gathering up a veto-proof majority may be a more difficult task.

The bill appears to do a number of good things, focusing on limiting the NSA's ability to do dragnet collections, rather than specific and targeted data collection, while also significantly increasing transparency of the activities of the NSA as well as the FISA court when it comes to rulings that interpret the law.

• End bulk data collection under Section 215 of the PATRIOT Act. This is the program that collects metadata on every phone call based on a twisted interpretation of the law and a thorough revisionist dictionary for words like "targeted," "relevance," "search" and "surveillance." Sensenbrenner, who crafted much of the original PATRIOT Act insists that when he wrote it, it was intended to already ban this kind of dragnet. The new bill will make that explicit. Similarly, it appears that the bill will require the intelligence community to be much more proactive in filtering out unnecessary information and deleting information collected incidentally.
  
  
• Fixing the FISC: As many have recommended, the law would make sure that a public advocate can be present to be an adversarial presence, arguing in favor of protecting Americans' privacy. There will be a special Office of the Special Advocate (OSA) created for this role. Somewhat surprisingly, the OSA will even be allowed to appeal decisions that the FISA court makes if it believes they stray from the law or the Constitution. That could be a very big deal.
  
  Separately, the DOJ will be required to declassify all FISC decisions from the past decade that involve "a significant construction or interpretation of the law." That is, no more secret law-making by the FISC.
  
  
• Greater transparency for companies on the receiving end of demands for information. This would make it so companies that get orders to hand over information can reveal numbers of requests, effectively stopping the existing gag orders which prevent us from knowing how often the NSA is demanding info from internet companies.

This legislation doesn't solve all the problems, but it does clearly attack the most egregious actions by the NSA and the wider intelligence community. I imagine those in that community will fight back hard on this. We'll be hearing outrageous claims about how people will die if they can't spy on all of us. But, in the end, if the NSA hadn't continued to expand its spying efforts, we wouldn't be in this mess to begin with.

Filed Under: fisa court, fisc, jim sensenbrenner, nsa, nsa surveillance, patrick leahy, section 215, transparency, usa freedom act

Senator Leahy Slams NSA Surveillance, Aims For Changes To FISA Court And NSA's Powers

from the about-time dept

There have been a number of proposals put forth in response to the Ed Snowden leaks, but many don't have very much support. However, having Senate Judiciary Committee boss Patrick Leahy pushing strongly for reforms is likely to get some attention. At just about the same time that Brazilian President Dilma Rousseff was slamming NSA surveillance to President Obama's face at the UN, Leahy was giving a speech slamming the NSA's practices, as well as the limp oversight of the FISA Court.

Sen. Patrick Leahy, the powerful chairman of the chamber’s Judiciary Committee, on Tuesday strongly endorsed a series of sweeping restrictions on U.S. surveillance programs — from ending the bulk collection of Americans’ phone call logs to creating new oversight mechanisms to keep the NSA in check.

In a speech at Georgetown University Law Center, Leahy (D-Vt.) said the government “has not made its case” that the ability to collect Americans’ phone records en masse under the PATRIOT Act is “an effective counterterrorism tool, especially in light of the intrusion on Americans’ privacy rights.”

While he reiterated his support for a bill that was introduced a few months ago that restricts Section 230, his renewed focus on the FISA Court may be the more interesting tidbit:

Leahy also called for a “hard look at the existing oversight structure and what we are asking of the judges appointed to the FISA Court.” Those judges, he explained, have taken on a “regulatory role not envisioned in the original version” of the law. And the court, he said, hamstrung by the NSA’s misunderstanding of its own programs or the agency’s misleading statements, hasn’t always been able to conduct meaningful oversight.

Leahy rejected the idea that the FISA Court is an “unthinking rubber stamp,” but he did raise the possibility that Congress will rethink the court’s responsibilities and structure

This is a key point in all of this that is often missed in the debates. The FISA court was supposed to just look at warrant requests from law enforcement to make sure they make sense. But it's changed into a body that is actually making law, by figuring out how to interpret various statutes, often in secrecy, without any opposing viewpoints presented. That's not what it was designed to do, and it's part of how we ended up in the situation we're in today.

Filed Under: fisa court, fisc, nsa, nsa surveillance, patrick leahy

Senator Leahy Calls For More Surveillance Hearings, This Time With 'Honest Answers'

from the and-even-pelosi-is-disturbed dept

It appears that with the latest revelations of abuses by the NSA, Congress is making noises about actually doing something about it this time. Senator Leahy seems quite reasonably ticked off, calling for new hearings in which he appears to make it clear that he's not at all happy that the intelligence community was less than honest during the last hearings:

"The American people rely on the intelligence community to provide forthright and complete information so that Congress and the courts can properly conduct oversight. I remain concerned that we are still not getting straightforward answers from the NSA," Leahy said in a statement.

"I plan to hold another hearing on these matters in the Judiciary Committee and will continue to demand honest and forthright answers from the intelligence community."

Of course, one could argue that it was clear during those hearings last month that the answers were not particularly truthful, so this does have a bit of a "for show" feeling to it. But, it's becoming clearer that even if the NSA had a slight majority of support in Congress recently, that too may be eroding. Even Nancy Pelosi, who may have single-handedly saved the NSA's ability to collect all info on every phone call under Section 215 of the Patriot Act a few weeks ago, is now saying that these latest revelations are extremely disturbing. Of course, perhaps she should have investigated that a little more before making sure the NSA could continue doing what it was doing...

Filed Under: congress, nancy pelosi, nsa, nsa surveillance, oversight, patrick leahy, surveillance