On January 3, 2017, the 115th Congress officially convened. In the Senate, it will be the Senate Judiciary Committee where any action relating to intellectual property reform will play out during the 115th Congress. In the House of Representatives, it will be the House Judiciary Committee that will be the body of primary importance insofar as any intellectual property reforms are concerned. Unlike the Senate, in the House, the front line action will take place in subcommittee, specifically the Subcommittee on Courts, Intellectual Property, and the Internet will take the lead for the full House Judiciary Committee.
Unlike in previous years, we enter 2017 without much support for a fresh round of patent reform, but at least some patent reform measures are sure to be introduced during the 115th Congress. In fact, just recently Congressman Bob Goodlatte, who is once again Chair of the House Judiciary Committee, put forth his legislative agenda which included patent litigation reform. Senator Chris Coons (D-DE) is also talking about it being time for Congress to amend 35 U.S.C. 101.
Senator Chuck Grassley (R-IA), pictured left, will once again be chair of the Senate Judiciary Committee. Grassley is a strong supporter of the development of wind, solar, biodiesel, biomass and ethanol as a sustainable, domestic, renewable energy source, which is not surprising since he comes from the heart of America’s farmland. Grassley is a pragmatic politician. In April 2014, when large entities were pushing hard for the latest round of patent reform to pass, Grassley pumped the breaks, acknowledging that there were significant differences of opinion on the need for additional reform. “Sometimes it takes more time than we’d like, but, the end result is a better product. I’m willing to sacrifice a little time to develop a bipartisan bill that we can all support.” Grassley’s pragmatic approach slowed things down during the 113th Congress, but Grassley introduced the PATENT Act in the 114th Congress. Throughout the 114th Congress, Grassley’s staff was aggressively searching for stories about small businesses being abused by patent trolls, which he could use to give patent reform momentum. Such momentum never materialized, despite the fact that the PATENT Act was able to pass the Judiciary Committee. It is believed that Grassley remains supportive of patent reforms that most inventors would deem unacceptable.
In his role leading the House Judiciary Committee, Goodlatte will continue to have tremendous influence on any intellectual property related matters. Goodlatte hails from Virginia’s 6th District, which is in the rural western part of the State and encompasses large portions of the Shenandoah Valley. He was originally elected to the House in November 1992. Goodlatte won that 1992 election receiving 60% of the vote, which has been his closest election. So secure is Virginia’s 6th District for Goodlatte that, in many election cycles, Democrats do not field a candidate against him.
On intellectual property matters, Goodlatte not only supported, but introduced the Innovation Act during the 114th Congress, which would have made modifications to U.S. patent laws that were seen as unfavorable by many innovators and independent inventors. My personal view on the Innovation Act is that it would have been a disaster. Of course, the Innovation Act was fought back in both the House and Senate during the 114th Congress, and at the moment there does not appear to be widespread support, or interest, in major patent reform. That could change, however, depending upon how the Supreme Court decides TC Heartland. Notwithstanding, the House Judiciary Committee, and in particular the Subcommittee on Courts, IP and the Internet, should remain active, with more interest in removing the Copyright Office from the Library of Congress and at least initial discussions about modernizing the Copyright Act.
The other important Republican figure to watch is Congressman Darrell Issa (R-CA), who is Chair of the House Subcommittee on Courts, Intellectual Property, and the Internet. Prior to being elected to Congress, Issa, who is himself a very successful inventor, founded an electronics company in the mid-1990s. In 1994, Issa was named Entrepreneur of the Year by Inc. Magazine, Ernst & Young and The San Diego Union Tribune. Issa, a prolific inventor, holds 37 patents in his name.
Despite being an inventor himself, the bombastic Issa has aligned himself with Google and other Silicon Valley elites. Issa is not viewed as a friend of independent inventors, and instead lambasts patents trolls as often as he can. While no one likes a patent troll, Issa has taken the unusual step to equate patent trolls with all patent owners who enforce their patents. This is odd given that, under Issa’s definition of a patent troll, he would be a patent troll himself. Issa himself aggressively enforced his patent rights, and many believe that had Issa’s patents faced the standards in place today, his patent claims may well have been found to be invalid, or his inventions deemed patent ineligible. This makes Issa a strange champion for technology-using companies engaging in efficient infringement. In terms of voting, Issa voted for the America Invents Act (AIA) and also voted for the Innovation Act in December 2013. He seems quite interested in pushing the Google patent reform agenda every chance possible. Indeed, Issa remains in favor of Michelle Lee staying or returning to the Patent Office as Director.