Patent Reform Bill Creates Strange Bedfellows in the House

The House passed a patent reform bill, called the Innovation Act, with a strong bipartisan majority of 325 to 91. 195 Republicans and 130 Democrats supported it. 27 Republicans and 64 Democrats opposed it.

Before we look at who voted how, let's take a look at what the bill does and who supported it.

Here's an overview of the bill in the Washington Post.

Require specificity in patent lawsuits. Right now, patent plaintiffs can file lawsuits that are vague about exactly how the defendant allegedly infringed the plaintiff's patent. That makes it easier for trolls to sue many people without doing their homework. The bill would require lawsuits to be more specific.

Make patent ownership more transparent. Patent holders sometimes form shell companies to engage in troll-like behavior. To discourage this, the Innovation Act requires patent plaintiffs to name anyone who has a financial interest in the patent being litigated.

Make losing plaintiffs pay. The Innovation Act makes it easier for a victorious defendant to recover the costs of defending against an unsuccessful patent lawsuit. Also, if a losing plaintiff cannot pay, the bill would allow a judge to order others who had a financial stake in the plaintiff's lawsuit to join the lawsuit and pay the defendant's legal fees.

Delay discovery to keep costs down. A big reason patent lawsuits are so expensive is that plaintiffs often force defendants to produce millions of pages of e-mails and other internal documents to help them build their case. The Innovation Act would delay this phase of the litigation process until after the courts have addressed legal questions about the meaning of patent claims. Hopefully, that will allow more frivolous lawsuits to be resolved before defendants have racked up huge legal bills.

Protect end users. A common troll tactic is to sue end users (such as coffee shops offering their customers WiFi access) rather than technology vendors (such as the manufacturer of the WiFi equipment). These small-business defendants can often be intimidated into paying regardless of the merits of a plaintiff's case. The Innovation Act allows technology vendors to step into the shoes of their customers and fight lawsuits against trolls on their customers' behalf.

The bill had bipartisan support.....

"The tens of billions of dollars spent on settlements and litigation expenses associated with abusive patent suits represent truly wasted capital," said Rep. Bob Goodlatte (R-Va.), the bill's sponsor. "The patent system was never intended to be a playground for litigation extortion and frivolous claims."

Democrats like Rep. Peter Welch (D-Vt.) agreed, and described the experience of one Vermont company that was sued by a plaintiff who claimed he had a patent on browsing the Internet with a mobile device.

"This was a stickup," he said. "Patent trolling is a total and complete abuse of the patent system, and a total ripoff of hardworking people."

....but also bipartisan opposition.

But the bill also drew significant bipartisan opposition from members who said that setting up obstacles to patent suits would only hurt small inventors looking to defend their patents from large, well-funded companies. Rep. Dana Rohrabacher (R-Calif.) has been the most vocal opponent of the bill, and said the term "patent troll" was devised by large companies in an attempt to de-legitimize small patent holders.

"Every time you hear the word 'troll,' what you're hearing is a manipulation of this debate by some very special interests, powerful interest, who want to steal from the independent inventor," he said.

House Judiciary Committee ranking member Rep. John Conyers (D-Mich.) agreed that the bill would unfairly hurt small patent holders, and said the bill does nothing to deal with another problem involving the diversion of patent fees paid to the U.S. Patent and Trademark Office (USPTO). Conyers said millions of dollars in these fees have been taken for other purposes, when they should be used to fund USPTO activities.

The bill was also opposed by Rep. Mel Watt (D-N.C.), who has been nominated by President Obama to be the next Federal Housing Finance Agency director. Watt went against the administration he might soon be serving in, saying that while the threat from "patent trolls" is real, "this bill adopts an extreme, unbalanced approach to address those abuses."

Prominent organizations supporting the bill include the U.S. Chamber of Commerce, EFF, Americans for Tax Reform, the Consumer Electronics Association, the Business Software Alliance, TechNet, the Coalition for Patent Fairness, National Retail Federation, and the Food Marketing Institute.

Prominent organizations opposing the bill include the Association of American Medical Colleges, the American Council on Education, the National Small Business Association, the National Venture Capital Association, the Association of Public and Land-grant Universities, Council on Government Relations, Association of University Technology Managers, and the Association of American Universities.

Tech and retail on one side; universities, venture capital, and small business on the other

The opponents were particularly worried about the "Loser Pays" provision and its increased cost burden on applicants:

The Innovation Act’s fee-shifting provision would require the loser of a trial to pay the other side’s legal fees. While this is intended to discourage potentially frivolous lawsuits from NPEs, some members of the startup community say it will also make it more challenging for startups and small businesses to legitimately assert their patents. The bill’s heightened pleading requirements – which require plaintiffs to be much more specific in their infringement claims – are also seen as posing an expensive barrier.

….

“The ability of universities to transfer inventions resulting from such research into the commercial sector for development relies heavily on the ability of these institutions and their licensees to defend their patents,” said the consortium of education groups via a press release. “But the sweeping provisions of H.R. 3309 would undermine that ability, chilling innovation by discouraging the legitimate enforcement of patent rights.”
The National Venture Capital Association, while admitting the harms of aggressive patent assertion, has also come out in opposition of the bill’s fee-shifting provision, saying the approach puts an unfair burden on cash-strapped startups, who may be unwilling to take the risk to defend their patents because of fee-shifting.

….

 “It arbitrarily raises the cost of litigation for all plaintiffs and all defendants,” says Austin Curry, a principal at Caldwell Cassady & Curry who specializes in patent infringement disputes.

Looking at the roll call vote, we see strange bedfellows united in the opposition. The Republican opponents are among the most conservative members of the Republican Party. Many of the Democratic opponents are among the most progressive members of the Democratic party. 33 out of the 64 Democratic NO votes are from the Congressional Progressive Caucus. (Just under half of the CPC voted no.)

Here are the 64 Democratic opponents:

Rob Andrews (NJ-01)
Joyce Beatty (OH-03)
Xavier Becerra (CA-34)
Timothy Bishop (NY-01)
Bruce Braley (IA-01)
Mike Capuano (MA-07)
John Carney (DE-AL)
Andre Carson (IN-07)
Matt Cartwright (PA-17)
Kathy Castor (FL-14)
David Cicilline (RI-01)
John Conyers (MI-13)
Elijah Cummings (MD-07)
Danny Davis (IL-07)
Susan Davis (CA-53)
Rosa DeLauro (CT-03)
Donna Edwards (MD-04)
Keith Ellison (MN-05)
Bill Enyart (IL-12)
Bill Foster (IL-11)
Lois Frankel (FL-22)
Marcia Fudge (OH-11)
John Garamendi (CA-03)
Alan Grayson (FL-09)
Raul Grijalva (AZ-03)
Rubén Hinojosa (TX-15)
Rush Holt (NJ-12)
Sheila Jackson Lee (TX-18)
Hank Johnson (GA-04)
Marcy Kaptur (OH-09)
William Keating (MA-09)
Ron Kind (WI-03)
Jim Langevin (RI-02)
John Lewis (GA-05)
David Loebsack (IA-02)
Alan Lowenthal (CA-47)
Michelle Lujan Grisham (NM-01)
Stephen Lynch (MA-08)
Jim McDermott (WA-07)
Jerry McNerney (CA-09)
Gwen Moore (MI-04)
Grace Napolitano (CA-32)
Gloria Negrette McLeod (CA-35)
Ed Pastor (AZ-07)
Donald Payne (NJ-10)
Scott Peters (CA-52)
Chellie Pingree (ME-01)
Mark Pocan (WI-02)
Charlie Rangel (NY-13)
John Sarbanes (MD-03)
Jan Schakowsky (IL-09)
Adam Schiff (CA-28)
Bobby Scott (VA-03)
Carol Shea-Porter (NH-01)
Brad Sherman (CA-30)
Louise Slaughter (NY-25)
John Tierney (MA-06)
Niki Tsongas (MA-03)
Juan Vargas (CA-51)
Filemon Vela (TX-34)
Peter Visclosky (IN-01)
Maxine Waters (CA-43)
Mel Watt (NC-12)
Frederica Wilson (FL-24)

And here are the 27 Republican opponents:

Justin Amash (MI-03)
Rob Bishop (UT-01)
Jim Bridenstine (OK-01)
Mo Brooks (AL-05)
Paul Broun (GA-10)
Kevin Cramer (ND)
Jeff Duncan (SC-03)
John Duncan (TN-02)
Louie Gohmert (TX-01)
Paul Gosar (AZ-04)
Andy Harris (MD-01)
Tim Huelskamp (KS-01)
Bill Huizenga (MI-02)
Walter Jones (NC-03)
David Joyce (OH-14)
Cynthia Lummis (WY)
Tom Massie (KY-04)
Tom Petri (WI-06)
Bill Posey (FL-08)
Dana Rohrabacher (CA-48)
Keith Rothfus (PA-12)
Ed Royce (CA-39)
Matt Salmon (AZ-05)
Steve Stockman (TX-36)
Randy Weber (TX-14)
Frank Wolf (VA-10)
Ted Yoho (FL-03)

John Conyers and Mel Watt, earlier noted as two of the bill's vocal opponents, offered a substitute bill that would have dropped the "Loser Pays" provision.  The House rejected it 157 to 258.

152 Democrats and 5 Republicans voted in favor of the amended bill. 216 Republicans and 42 Democrats voted against it.

Here are the five Republicans who voted for this amended version:

Ralph Hall (TX-04)
Walter Jones (NC-03)
Cynthia Lummis (WY)
Tom Petri (WI-06)
Dana Rohrabacher (CA-48)

Here are the 42 Democrats who voted against this amended version of the bill:
Ron Barber (AZ-02)
Ami Bera (CA-07)
Earl Blumenauer (OR-03)
Lois Capps (CA-24)
Tony Cárdenas (CA-29)
Joaquin Castro (TX-20)
Gerald Connolly (VA-11)
Jim Cooper (TN-05)
Jim Costa (CA-16)
Henry Cuellar (TX-28
Pete DeFazio (OR-04)
John Delaney (MD-06)
Suzan DelBene (WA-01)
John Dingell (MI-12)
Tammy Duckworth (IL-08)
Anna Eshoo (CA-18)
Pete Gallego (TX-23)
Gene Green (TX-29)
Rubén Hinojosa (TX-15)
Mike Honda (CA-17)
Jared Huffman (CA-02)
Dan Kildee (MI-5)
Rick Larsen (WA-02)
Sander Levin (MI-09)
Zoe Lofgren (CA-19)
Nita Lowey (NY-17)
Jim Matheson (UT-04)
Betty McCollum (MN-04)
Jim Moran (VA-08)
Richard Neal (MA-01)
Beto O’Rourke (TX-16)
Bill Owens (NY-21)
Gary Peters (MI-09)
Collin Peterson (MN-07)
Jared Polis (CO-02)
David Price (NC-04)
Raul Ruiz (CA-36)
Linda Sánchez (CA-38)
Kurt Schrader (OR-05)
Kyrsten Sinema (AZ-09)
Adam Smith (WA-09)
Eric Swalwell (CA-15)