As Senator Eric Lesser wages his war on patent trolls, reinforcements have arrived on Beacon Hill.
Lesser came close to victory before. He had tucked a measure to discourage bad-faith patent claims into a broad economic development bill, one that sailed through the House and Senate last summer. But Governor Charlie Baker vetoed the patent-troll language in August, stopping it in its tracks for the year. (Time had run out for any override.)
The issue has become a serious crusade for Lesser, who worries about the toll these trolls are taking on the state’s innovation economy. Representative Lori Ehrlich recently joined the fight by taking the lead on the House side. Patent trolls — a kind of "non-practicing entity," to use legal-speak — stir up trouble by making sketchy patent infringement claims against entrepreneurs and then asking for payments to go away.
So why did Baker spoil the summer party? Several big employer groups had urged the governor to kill the measure, citing concerns about its potential impact on legitimate patent claims. The bill that went to Baker had language aimed at carving out such "good faith" claims, but some business leaders worried that companies and universities would need to go to court to prove their claims weren't bogus.
Now, the Greater Boston Chamber of Commerce and the Massachusetts Biotechnology Council have joined Lesser’s army. Chamber chief executive Jim Rooney submitted a letter on Monday to a legislative committee reviewing the bill in which he describes the patent trolls as “a scourge that must be addressed.” (Rooney sought one minor tweak to the bill, but he was otherwise strongly supportive and praised the exclusion language.)
Then there’s MassBio. The biotech trade group had lobbied against Lesser's legislation last summer but now seems to be an eager supporter, as long as those explicit carve-outs remain.
But Lesser still finds himself at odds with Associated Industries of Massachusetts, the state’s largest employer group. AIM acknowledges that the new version of the bill is an improvement. But the group argues that the issue should be handled on the federal level, and that patent troll activity has been on the wane anyway.
Foley Hoag partner Phil Swain agrees with AIM on that final point: The patent lawyer says patent troll claims peaked in volume around four or five years ago. More than 30 states already have put in place laws like the one Lesser is championing. And there have been successful prosecutions, most notably when Vermont’s then-attorney general took on a particularly notorious troll out of Texas.
Swain still sees the need for Lesser’s bill. He pursued another prominent troll that threatened his client, online parts seller 1A Auto, for legal fees. But the Florida firm filed for bankruptcy. From Swain’s read of the bill, attorneys like him would be able to pursue the individuals behind the trolling firms. The legislation also makes clear that an out-of-state claim against a local company can be adjudicated here.
The fear of trolls hasn’t subsided. Boston cybersecurity firm Rapid7 launched an online petition last month to show its support for Lesser’s bill. Nearly 40 tech firms signed on to urge the Legislature to move swiftly. They range from small startups to household names such as TripAdvisor and Wayfair. The Massachusetts High Technology Council and the Mass Technology Leadership Council also showed their support.
When Baker vetoed Lesser’s measure, the governor said he wanted to see a more focused, narrower solution from the Legislature.
Lesser believes he has one, and he has a growing number of forces at his side.