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Former Foes Key to Patent Bill Passage

By Thursday, Sept. 6, on the eve of the House vote on the first major patent law overhaul in decades, lobbyists in favor of the measure knew they were almost certainly on the cusp of a big victory.

Not only were Democratic leaders in the House making the vote a priority, but several key interest groups and companies who had been vocal adversaries called off their opposition — and in some cases actually offered their support. Lobbyists working in favor of the bill said that was key to Friday’s eventual 220-175 victory.

In one case, a major higher education group, the Association of American Universities, dispatched a letter on Sept. 6 expressing its support for the bill while pledging to continue to work on things it found problematic. In addition, the AFL-CIO backed down from its opposition, as did companies such as Motorola.

The bill would revamp the patent litigation system, in some cases making it harder to sue for patent infringement. That is perhaps the most contentious aspect and has largely pitted Democratic-friendly tech companies against GOP-connected pharmaceutical firms.

Another influential higher education group, the Wisconsin Alumni Research Foundation, wrote to Members that it outright supported the bill and that it was “preferable to the bill as introduced” and appreciated the changes that had been made.

“I think those letters definitely helped Members who were on the fence,” said Josh Ackil, a Democratic lobbyist with the Information Technology Industry Council, a group that pushed for the bill. “That helped reassure them.”

Ackil said some of the groups, like universities, still had concerns with the bill. But rather than pass up the chance on what most likely will be the only major patent overhaul in years, they want the bill to move forward. Final tweaks, they believe, can still take place in the Senate or during the conference committee.

Lobbyist Steve Elmendorf, who co-leads the pro-patent-reform Coalition for Patent Fairness, said Members who championed it, such as Rep. Howard Berman (D-Calif.), swayed groups by bringing them to the table.

“The people who were raising concerns about process, ultimately they were trying to kill the bill and they failed,” Elmendorf said. “People who were reasonable and came to the table, they supported the bill.”

However, advocates for companies and groups opposed to the House-passed bill said Berman, who chairs the Judiciary Subcommittee on Courts, the Internet and Intellectual Property, used tougher tactics to sway groups. One lobbyist against the bill said “there are just as many calls that are going up to the Hill as are coming back from the Hill.”

Added another lobbyist who is working on the bill: “My understanding is Berman has been pulling people in individually and saying, ‘This is very important, and you have other stuff in front of me.’”

Not so, said Berman spokeswoman Gene Smith.

“I’m quite certain that that is not Mr. Berman’s approach at all,” she said. “This is Howard’s bill, so of course he’s been very active on this. He’s very open to entertaining ideas from groups” both for and against the bill.

As for Motorola, which is a member of the Coalition for 21st Century Patent Reform —a group that did not support the bill — the company offered tepid support for Berman’s effort in an e-mailed statement. “We like what the Chairman has done and look forward to continuing to participate in the process to get the Bill to the President. We are working to narrow the gap on select issues with the Bill,” wrote William Anaya, vice president of government relations for Motorola. “Motorola continues to advocate for a legislative solution that achieves comprehensive patent reform.”

Several lobbyists, who spoke on background, said that some companies had changed or modified their positions as the bill advanced through the House, but more importantly, as higher-ups within the various companies weighed the bill’s pros and cons.

Marc-Anthony Signorino, director of tech policy for the National Association of Manufacturers, said even though his group sees serious problems with the House bill, it is tempering its opposition so as to be included in the debate.

“Patents need to be better, and litigation abuses need to be got rid of,” he said. “There hasn’t been meaningful patent reform since the mid-’50s, so right now, once the books are open, this is a great time to do it. I think you’re seeing a lot more folks saying we’re not opposed to patent reform, we just want it to move slower.”

As the action now shifts to the Senate, opponents see an opportunity to slow — and even kill — the measure there.

Kevin Kearns, president of the U.S. Business & Industry Council, which opposed the House bill, said he planned to start lobbying the Senate today to put the brakes on patent reform.

“There is massive and widespread opposition to the bill, and if the Senate thinks they’re going to just roll it through, I think that’s a mistake,” he said. “I think we’re going to be successful there.”

Elmendorf, on the other hand, buoyed by the House victory, said momentum is on his side. “To have a bill actually passed through the House … in a solid bipartisan vote, that puts real pressure on the Senate now.”

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