On September 7, 2012, I spoke at length and on the record with Manus Cooney. Cooney is a prominent DC Lobbyist who was intimately involved in lobbying the America Invents Act (AIA). He is a partner with the American Continental Group, a D.C. based consulting and lobbying firm that boasts one of the most prominent IP practice groups in town. As a former Chief Counsel for the United States Senate Judiciary Committee, Cooney knows well how legislation moves, how to work with Members of Congress to fix legislation and how to engage in the art of persuasion to help clients have their interests considered.
In part 1 of the interview we talked largely about the art of lobbying in general. In part 2, which is forthcoming, we spoke directly about the AIA and what is on the horizon for patent reform. Yes, you heard that correct. Cooney and two of his partners at ACG — Marla Grossman (for IP Counsel to Senator Patrick Leahy (D-VT) and Chris Israel (the first “IP Czar”) — have told me that patent reform is not done. In fact, things are just heating up. With ACG primarily representing clients who are advocating for strong IP protection both in the U.S. and abroad, they are quick to point out that there are forces at work that continue to attempt to erode the rights of content creators and innovators.
While you may want to chalk that critique up to the fact that they are lobbyists, don’t be too quick. I observe the same forces at play and have come to the same conclusion. I have stated it before and will say it again — there are many infringers that simply want to weaken patent rights and altogether ignore copyrights. You are making a huge mistake if you think that the AIA was a once in a lifetime event. We may never see the magnitude of changes to the law and rules of practice, but more substantive changes are being fought for behind closed doors all the time. See Patent Legislative Agenda for 2012 & 2013. And trust me, if you are pro-IP you won’t like those changes. For example, see Infringer Lobby Seeks to Strip ITC of Patent Powers.
In any event, one of the most interesting things to come out of part 1 of my interview with Manus Cooney was a greater understanding regarding how to affect legislation.
One of the things that I have heard many patent attorneys and inventors comment about relative to the way the AIA was passed relates to the speed at which things moved at the very end. Many also comment on how it seemed like virtually no Members of Congress really were listening to the various constituencies late in the game. In fact, many noticed that the efforts to get people to call, petitions signed and letters sent seemed to go without adequate notice or consideration. And now I know why.
As Cooney said to me:
Trying to come into the debate on any bill when a measure is on the floor or during markup and expecting to be able to affect that product at that given time is really tough. It’s fighting windmills at that point. You’re a day late and a dollar short. You need to be engaged much farther in advance.
Cooney told me that he was involved in “literally hundreds” of meetings about the AIA. The job of the lobbyist is much more than simply engaging in fundraising and opening doors. The lobbyist is there to present the interests of the client, but they are also there to listen to the Members of Congress and then attempt to develop a strategy that will make it as easy as possible to get what the client wants. In other words, you have to meet with Members of Congress so you can learn their motivations, interests and challenges. Then you have to figure out how to advance the client’s position in a politically feasible way. That takes not only a skilled advocate, but also one who is politically savvy.
Cooney also explained:
Policy outcomes are grown over time. Meetings and symposia are usually being held to try to achieve some sort of middle ground or discussions are being held within various stakeholder trade associations or coalitions about what they may or may not be willing to support. And once consensus is close or achieved, and a window opens on the floor schedule of the House or the Senate, things then tend to move pretty quickly.
Thus, if strong intellectual property rights matter, if you or your clients require meaningful patent protection, you need to stay engaged. When you notice that something ill conceived is advancing from stage to stage it may be too late. You need to engage early, and it will help to have an advocate who thoroughly understands the legislative process, is familiar with IP issues and who is known to those on Capitol Hill.
Finally, let me give this word of caution. We in the patent community will be enduring much change over the coming months and years. It will be easy to become preoccupied with that change in our day-to-day practice lives, but we cannot lose sight of the fact that those who would prefer watered down rights will not rest, and they are well funded. Patent reform efforts will be a part of our practice lives for the foreseeable future and none of them seem to be at all about expanding the rights of innovators and content creators.
Tags: Manus Cooney
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