Senate Republicans, who've already attacked trial lawyers for fighting the lingering FISA issue, are turning to "patent trolls" (those who aggressively enforce patents) as they move to claim that lawyers challenging post-9/11 legislation are jeopardizing national security.
"We are going to start making their support for patent troll lawyers an issue," said a senior Senate GOP leadership aide. "These are examples of where the Democrats are putting these patent trolls and their clients ahead of national security. It's a trend; it's a pattern."
In the case of the Foreign Intelligence Surveillance Act, Republicans have claimed that opposition lawyers are undermining national security by blocking retroactive immunity for telecommunication companies that cooperated with the post-9/11 wiretap program. Now Republicans are turning to patent lawyers and an issue related to Check 21, part of the post-9/11 international finance initiatives.
Republicans led by Sen. Jeff Sessions of Alabama are trying to provide cover from patent infringement suits to banks that the Check 21 legislation forced to electronically log checks. The requirement came after 9/11, when grounded jets filled with paper checks sat for days, temporarily prohibiting banks from using that money. Sessions has won support for an amendment that would effectively block suits, like one by the Texas firm Data Treasury, from collecting damages from banks that use its patented technology to digitally scan and archive checks. His amendment to the patent bill, passed unanimously in committee, is expected to hit the Senate floor this month.
Banks claim that after 9/11, they were mandated to use the system and thus shouldn't also be required to pay for using the technology.
"We mandated something, and now they're being sued. That's not right, so we're going to help them," said the GOP official. While the company wouldn't lose its patent in the Sessions legislation, it also wouldn't receive any payments from banks. However, if courts decide that a payment is needed, the federal government would pay. The Commerce Department has come out in opposition to the Sessions amendment, but administration insiders believe that the White House is neutral on it.
The company has won support in legal and media circles, but critics say it's in business to sue firms that might give in to a legal threat.
By Paul Bedard