Ever since the story came out last week about the AFL-CIO opposing the patent reform bill (they really aren’t opposing the entire bill, just two provisions – but I’m getting ahead of myself), I’ve been looking more closely at the politics of the issue. And it is fascinating. While Washington normally slumbers in August, opponents of the legislation have been marshalling a blitz. Part of this has been a demonization of the legislation as anti-small inventor and US manufacturers and pro-multinational corporation (an interesting tactic since big pharma is a leading opponent of the bill). Hence the opposition of anti-corporation groups like the labor unions.
The anti-bill group is an interesting coalition (as most coalitions are) of groups with different agendas. There are the hard core that want to kill the bill and any other changes. They think the status quo is just fine. (For good articulation of this point of see the thoughtful comment by Steve Wren in Techdirt: Unions Make Ridiculous Arguments Against Patent Reform.)
The other part of the coalition are groups like big manufacturers (and the industrial labor unions) and big phrama. It appears that they don’t want to kill the bill – just gain enough leverage to change it more to suit their interests. For example, the AFL-CIO letter raised two objections about post-patent review process and apportionment of damages. The letter doesn't seek to kill the bill, just amend it: "We urge you to take the concerns of the manufacturing sectors of these issues into account in developing the final version of the Patent Reform Act of2007, H.R. 1908."
For a scorecard of who is on what side, see Tech vs. Tech: The Patent War - Chris Frates - Politico.com.
This coalition could come apart on some issues, such as international harmonization – which means switching from our current system of “first-to-invest” to the “first-to-file” system the rest of the world uses. First to invent is a sacred principle for the small inventor. The rest of the coalition actually wants to change. For example, see the letter from James Greenwood of the Biotechnology Industry Organization - In Rebuttal: The U.S. patent system works
The Patent Reform Act includes provisions that would improve patent quality and harmonize U.S. patent law with international patent law -- worthy goals everyone can support.
. . .
The truth is, despite the legitimate concerns raised by the biotech industry and other stakeholders, we are close to meaningful reform of our nation's patent system. We can agree across industries on many basic principles and can negotiate many of the remaining complex issues.
So there are three ways that this could go – 1) the pro-bill forces are strong enough that the bill goes through, 2) enough changes could be made to defuse the concerns – specifically big manufacturers and big pharma – that the bill passes or 3) the anti coalition kills the bill.
My guess is that it will be either 2) or 3). My hope is that it is 1) or 2) – if this bill dies, then I think we will not see legislation for probably a decade. The status quo prevail – as modified by the Supreme Court.
So, we will see. The House Rules Committee is scheduled to meet this afternoon to consider what amendments will be allowed to the bill. The key lies in that middle group seeking leverage. Are they willing to live with the status quo for a long time or are they willing to compromise? And how far is the pro-side willing to go? As the old saying goes, be careful what you wish for, you may get it.
Leave a comment