Who’s behind the last-minute push to thwart patent reform?(washingtonpost.com) |
Who’s behind the last-minute push to thwart patent reform?(washingtonpost.com) |
Instead, you should focus on the politician most responsible for blocking patent reform - Harry Reid, and the power he wields as Senate Majority Leader. He might not be up for re-election until 2016, but your donations and votes can help remove him from his position as majority leader in November.
That's a really broad spectrum of iconic American technology companies. These were joined by a number of research universities as well as groups representing small businesses that employ scientists and engineers.
It's easy to take an internet company-centric view of the world and dismiss the whole opposition as "oligarchs and special interests." But think of it from the perspective of a Congressman or Congresswoman. He or she doesn't know that "Twitter is in, while Microsoft is out," so to speak. What they know is that Microsoft is an American company that employs 100,000 people, more than Google, Twitter, Yahoo!, and Facebook combined. From their perspective, the opposition isn't "oligarchs and special interests." They're a broad swath of what they perceive as the relevant stakeholders: American companies and universities engaged in R&D that employ lots of scientists and engineers and create lots of "next-generation STEM jobs."
The whole political machinery of the U.S., on both sides of the aisle, is committed to the technology sector being an engine for job creation going forward. That doesn't just mean the internet sector, but also pharma, biotechnology, automotive, energy, etc. These are the sectors Washington is counting on to replace the jobs Silicon Valley is automating away. When a list of key companies in each of these sectors oppose reforms, and say that they will hamper job creation, then it will be very difficult to convince members of Congress that the reforms are a good thing overall.
The first set of reforms passed because there was broad buy-in from the technology sector as a whole. Any future reforms will require more buy-in from the broader industry than exists right now.
This is a key point. Whatever arguments you can make about the economic efficiency of IP laws[1], favoring the industry that employs a lot more people isn't "un-democratic." It's democracy, good and hard. [2] Those 100,000 people can easily outvote all the other companies. It's exactly the opposite of favoring the oligarchs, which would be the sharehodlers of GOOG, TWIT, YHOO, FACE.
[1] Those latter companies indeed make more with less workers, which to a first order approximation is what you want to encourage in the long term. It's not the final answer and there are good arguments to make the other way, like GOOG needing other people's IP in order to have something to index and put ads on top of.
[2] As my allusion to Mencken suggests, I really don't like populist arguments. But when defending the populists' jobs becomes "defending the oligarchs" I know I'm in some kind of bizarro world.
IBM: ~400,000 GE: ~300,000 Ford: ~180,000 Apple: ~80,000 Pfizer: ~78,000 DuPont: ~70,000
Additionally, I know that Microsoft almost another 100,000 people employed as "vendors". Furthermore, these are the kinds of stocks that tend to be widely held by e.g. pension funds and 401k programs, so their impact extends well beyond their employees.
Now to be fair, these employee counts are worldwide and not just in the United States -- and the interests of their management are not necessarily aligned with the interests of the employees. But it's important to have some perspective on the scales of things. Historically, Ford has done a lot more to raise the standard of living of the average American than Facebook has.
Disclosure: I work at Microsoft.
DuPont, Pfizer, Ford and GE are in industries that are not plagued by patent trolls. That they're against it tells you nothing about how it would affect them because they don't experience the problem the legislation solves, so it necessarily creates nothing but downside risk for them. No matter how small that risk is, requiring them to put their full support behind it in order to fix somebody else's problem is requiring reform to fail.
But it is also disingenuous to suggest that they are the major force against reform, because the bill is quite well targeted specifically at patent trolls. The downside risk for Pfizer et al is extremely small. They may not support it but it's hardly going to put them out of business if it passes. What it would do is put a huge number of patent trolls out of business (along with the lawyers that represent them), and in so doing save a huge number of jobs at the startups they would have extorted or bankrupted. Which is why everyone is saying that the trial lawyers are the ones that most wanted to kill reform -- because the trial lawyers are the ones that most wanted to kill reform.
If we only took action and never groused publicly, man, HN would be a boring place.
It's clear here that the problems aren't with 'American democracy' (or any other incredibly-broad and incredibly-hard-to-change system) but with a few ever-so-ejectable politicians. We can agree to disagree, but I believe that blaming the problem on structural issues encourages apathy and helplessness in a way that focusing on Reid does not.
Even if this is an overreach that would "treat every patent holder as a patent troll" (a claim I find highly suspect), doing nothing has the effect of harming the very people that can move our economy forward, the innovators and entrepreneurs. When making a decision between a bill that helps this group versus trial lawyers, it's unfortunate that our leadership chooses the latter to protect.
And, Apple and Microsoft have previously funded patent trolls (IV). And IBM has more than 50,000 patents and brings in over $1 billion annually in licensing revenue.
Are they also similarly surprised and dismayed that many of the people writing software studied computer science?
There is some young blood taking these issues seriously though: http://www.theamericanconservative.com/articles/the-party-of...
Would these be multiple Republican people? Kill the bill and blame it on Reid! Twofer!
Not saying its true, just awed by the credulity of some of the comments here.
I don't think that Reid got where he is by being politically stupid. Therefore, I don't buy your scenario.
[Edit: I just re-read the parent, and realized the claim was that Republicans did the killing, not that they manipulated Reid into doing the killing. I still don't buy it.]
I'm not saying he did it. I'm not saying he didn't do it. I'm saying the washington post reported unnamed sources said Reid did it.
I think that's a pretty low bar of evidence, is all I'm saying.
There is absolutely a difference between a copyrighted image and a free to use image, even if I know the copyright holder is in no position to sue me. Likewise, there is a clear difference between someone's protected invention (if they have passed a very high bar over prior art, obviousness, etc) and the way the problem is always and usually solved. (If at all.)
I can respect a real patent just as easily as I can respect a copyright, and so it is hardly fair to say that a patent is nothing until it is tested in court.
If the term limit is more than one term, they still need funding to run their re-election campaign. If a politician finds himself in his legally mandated final term, then he also has no reason to listen to the people - unless he's running for another office, in which case he still needs the funding from special interests and oligarchs. Even if he's not running for another office, whose opinion do you think he's going to care more about - John Q Public's or Special Interest ABC, which is prepared to offer him a cushy consulting/lobbying position or directorship after his public service ends?
Even if you limited congressional service to a single term, you still wouldn't solve the problem - they'd still need financial support to get elected in the first place, they'd still get cushy job offers for after they leave, etc. Additionally, history (and current events) show us that congressional inexperience matters: you end up with a much more partisan Congress that tends to more strongly toe the party line, and you rely more on outside "experts" (lobbyists) to write effective legislation. Partisanship tends to be a little more muted when you've eaten lunch with the guy on the other side of the aisle for the past 40 years, and when your voting district has known you their entire lives rather than voting for you solely because of the R or D on your name.
The US has been oligarchic from day one - indeed, much of the founders thought we had gone far too democratic as it was and would have preferred a king and parliament. And as it was, by and large, only propertied white men could vote - and senators were chosen by the state legislatures (who obviously chose people of power and/or wealth) rather than direct election, as it is now. In almost every way, we're better off now than we were to start with - though I do think we're on the downslope of a curve here lately. I just don't think you can reduce the problem to "it's the career politicians!" - there's a lot more to do it than that, and I'm not so sure being a career politician is even a problem. I'm sure most of these politicians don't even really think they're doing something wrong - they see Americans and American businesses and what they perceive as experts trying to "educate" them that we need things like software patents. I don't think simply replacing the politician is going to help at all there.
The first is the cycle of government employees overseeing contracts and then going to work as lobbyists or employees for the people they were overseeing. Passing an amendment that says no government appointee or senior staff member can go work for any company they had contact with while holding the position for 5 or 10 years will end the first cycle.
The lobbyist / I need $ for reelection is harder. Some say only government funded campaigns, but I'm pretty sure I don't want the government's current parties making those rules and frankly it doesn't seem to help elsewhere. I am more for an amendment that says groups (corp or union) cannot contribute money to politicians / political parties. Both corporations and unions are gatherings of people and no more deserving of protection than the other. The biggest problem with all that is the news media is run by corporations and the ink is still going to be there. I'm afraid the second cycle is going to be with us for a long while.
One thing that would probably help but will never happen would be to figure out how to make committee chairs service positions that had less influence over the output of the committee than the other members.
Sorry but there are no simple technical fixes. As long as politicians have these powers special interests will find a way to influence them. In my opinion the only thing that will help are limits on political power.
The most interesting proposal I've heard is to give tax rebates for political contributions. If you agree with the SCOTUS ruling that money equals speech then giving everyone some cash to spend on politics might give a voice to the masses.
I know absolutely nothing about the legislation in question.
A patent by itself is not a very big moat to protect against competition; if you don't believe me just ask Samsung. The only way to actually turn a patent into force is to spend a gargantuan among of money on lawyers. I just think 99% of time that capital is better spent in other areas in the business. Spend it to get better at "running upstairs" - http://www.paulgraham.com/wealth.html for example.
Patents can be valuable as part of a business's competitive advantage. However, recently the damage caused by trolls using this as their only competitive advantage has made patent's negatives far outweigh their positives to the markets at large.
On the other hand, actual practitioners can use their judgment. The standard is supposed to be non-obvious to someone skilled in the art. For most patents, this is going to be fairly simple, just as most cases where we respect copyright are fairly simple.
Good. I think the people using these government jobs in this manner are the people we don't need overseeing those contracts.
Also, a 10 year ban is worth negative hundreds of thousands of dollars to the sort of person that is competent and understands the field they are working in. That's a pretty big disincentive, never mind that 'government job' already sort of has a negative association for lots of motivated people.
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.
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.
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.
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.
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.
> 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.