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One insider describes how trial lawyers killed patent reform

Senate Judiciary Committee Chairman Patrick Leahy (D-VT)
Senate Judiciary Committee Chairman Patrick Leahy (D-VT)
Bill Clark/CQ Roll Call

On Wednesday, the chairman of the Senate Judiciary Committee, Patrick Leahy (D-VT), abruptly shelved legislation to reform the patent system to deal with the problem of patent trolls. I reported on Friday that the deal was shelved after trial lawyers exerted pressure on Democrats to scuttle the legislation.

Most of the time, reporters covering this kind of negotiation are forced to rely on anonymous sources, because insiders don't want to risk offending members of Congress by speaking on the record. But one insider was so frustrated by this week's development that he agreed to talk to Vox for the record. Ken Glueck is a senior vice president at Oracle, a software company that has been lobbying in favor of the patent reform legislation.

In this interview, Glueck agrees with my other sources that trial lawyers were behind the decision to scuttle the Leahy bill. But he disputes claims that Chairman Leahy couldn't get enough votes to pass the legislation out of committee. Instead, he suggests, trial lawyers who didn't like the direction the negotiations was headed convinced Senate leaders to scuttle the bill without a vote. The transcript has been edited for length and clarity.

Timothy B. Lee: What are your thoughts on this week's developments in the patent debate?

Ken Glueck: I guess it's over, right? That's the amazing part. You have a bill that passes the House overwhelmingly, including the leadership of both parties. It has White House support. It gets to the Senate, where a bipartisan group was working on language, led by Senators Chuck Schumer (D-NY) and John Cornyn (R-TX).

It took an awful lot of negotiation to get to the point where earlier this week you had Chairman Patrick Leahy sign off on the language. Sen. Orrin Hatch (R-UT) [signed off on the bill] as well. There was a full expectation that there were at least 4 or 5 other Democrats supporting the proposal.

Then someone decides to call the game off, which is frankly astounding.

TL: What triggered the decision to call the game off?

KG: I can only guess it was the trial lawyers. Why? Because they lost at every turn. If winning the debate wasn't an option, they were just going to call the game off. Which is apparently what they did.

There's certainly enough cause to claim that Washington can't get anything done. But something with this much support and this much momentum getting the plug pulled on it is an amazing outcome. There's no question there was consensus and agreement on the language that would have easily passed the Judiciary Committee and easily passed the Senate. There was White House support and a bill done in the House. I don't know how a bill [with this much support] winds up in this situation.

TL: Some people I talked to said that Chairman Leahy was having trouble getting support from Democrats on the Judiciary Committee. Any comment on that?

KG: You never got to test that. The problem is that when the plug was pulled, it was just after Chairman Leahy had indicated he supported the new compromise language. Sens. Richard Blumenthal (D-CT), Amy Klobuchar (D-MN), Sheldon Whitehouse (D-RI), and Dianne Feinstein (D-CA), were all inclined to support it anyway. Once you have the chairman signed off on the language, I don't know how anyone would conclude you wouldn't get a vote out of the judiciary.

This version of the language was substantially negotiated off of the House version, which passed by a very wide bipartisan margin. I've heard that argument [that Leahy couldn't get Democratic support], I just don't have one shred of an idea where that conclusion would come from. If there's a problem then the way to deal with is to say "OK we have senators X, Y, and Z who need the following two changes to make it happen." That's what was happening over the last 2 weeks.

There was an agreement between Schumer and Cornyn that Chairman Leahy couldn't support, so the past two weeks there was a lot of effort making a lot of changes to get him comfortable.

The real problem here was there was no language that was acceptable to a group [the trial lawyers] that has lost the debate by my count three times. They lost in the House, they lost in the White House, and they were about to lose in the Senate.

TL: There have been reports that the decision to kill the legislation came from Majority Leader Harry Reid (D-NV). Do you know if those reports are true?

KG: I have no first-hand information about that. I've heard the same things you've heard. The last we heard was we had confirmation that Chairman Leahy was supporting the language and the markup was scheduled. Then the next thing you hear is that patent reform is dead for the year. There was some intervening activity between point A and point B.