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We Didn't Fail on Patent Reform: An Open Letter to the Media, Congress and Tech

You, the ones who invent products, write the code and start new businesses, you are the most optimistic people I know.

Last month, Sen. Patrick Leahy unceremoniously pulled patent reform off the Senate Judiciary calendar — denying a good piece of compromise legislation a vote — reportedly under pressure from Sen. Harry Reid, who was reportedly under pressure from the trial lawyers’ lobbying arm. This took many of us who have been working hard to fix a dangerous patent-troll problem by surprise. And not a pleasant one.

I’ve taken some time to reflect in the aftermath of this failed bill. I’ve looked for a lesson, a single takeaway. None exists. But some points must be made: To the media, who I think have largely missed the point; to D.C. insiders, whose failure to make patent reform happen will have real consequences; and to the tech community, whose hard work has paid off, but which still faces an uphill battle in navigating policy and politics.

First, to the media who report that tech is “D.C.’s biggest loser” and highlight “Silicon Valley’s lost year in Washington” — you’ve got your story wrong. For starters, if you’re living in the same political universe that I am, it should be clear that this Congress is notorious for getting nothing done. It should come as no surprise that tech’s causes are not miraculously turning into legislation. No one’s are.

Still, so-called “tech issues” are driving political debates at all levels of government. The movement for patent reform has already had a serious chilling effect on patent trolls, and it’s far from over, as courts and states keep chipping away at the troll “business model.” And other issues that tech traditionally cares about — immigration, privacy reform like an update to ECPA, government surveillance and net neutrality — dominate headlines. Many have turned into social movements that are not at all limited to the tech community, and each will continue to shape policy in this do-nothing Congress, and hopefully in the more productive ones that come next.

Second, to D.C. policymakers: When you failed to even put patent reform to a vote in the Senate, you taught many proponents of reform what all too many knew already — that politics is “pay to play” and that deep, entrenched interests make it nearly impossible to get anything meaningful done in Washington. What many of you failed to recognize, however, is that the so-called “tech community” is actually becoming the American electorate at large. Soon, there will be no distinction between the tech community and the rest of the country. As today’s digital natives turn 18, they all become tech voters. The politicians who understand that, and who work to legislate policies that help technologies and the startups who create them thrive, will be the future of this country.

Finally, to tech, I have two messages — the work you did, and the community you built to support patent reform, did help. But we need to do more.

Patent trolls remain on the defensive. Even without comprehensive litigation, courts are shifting fees to losing parties who bring spurious lawsuits. Other courts, too — including the Supreme Court — are taking a closer look at patent-troll practices and patent quality. In addition, the Patent Office is working to modernize and improve its internal processes, the Federal Trade Commission is investigating patent trolls and protecting consumers from the trolls’ worst behaviors, and states are passing legislation and targeting trolls.

This is not to say that we don’t still need comprehensive reform; it is to say we have made progress.

But entrenched interests still stand in the way of real legislative fixes to some of the worst problems we face as a community and as a country. While you might not want to keep fighting, we need you to. And while you might want to go back to your offices and sit in front of your computers and get back to work — as you should — you also need to help us make sure that policymakers hear your voice.

You, the ones who invent products, write the code, and start new businesses, you are the most optimistic people I know. You think that technology can change the world — and you’re right. So you need to stay in the game, fight back against the monied interests, and make sure that the technologies you create are able to flourish. No one else is going to do it for you.

This is not the story of a “failed patent bill.” Instead, it’s about a community that, despite its relative youth, is learning how to navigate an often dysfunctional legislative system. Our efforts have changed substantive debates in many areas, and have significantly moved the state of the law — even without passing legislation yet this year. This progress might be written off by some, but what we have already achieved is a powerful signal of what’s to come.

Julie Samuels is the executive director of Engine, a research foundation and advocacy organization for technology entrepreneurship. Previously, she was a senior staff attorney and the Mark Cuban Chair to Eliminate Stupid Patents at EFF. Before becoming a lawyer, Julie was an assistant editor at the National Journal Group in Washington, D.C.

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