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What Senator Elect Scott Brown Means for Patent Reform


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
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Posted: January 20, 2010 @ 2:36 pm
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Senator-Elect Scott Brown (R-MA)

If you are unaware that Massachusetts Republican Scott Brown was victorious last night via special election to fill the remaining term of the Senate seat held by the late Senator Ted Kennedy you must be living under a rock.  Over the last month or so Brown has surged in the polls and took Massachusetts and the nation by storm, claiming a Senate seat long believed to be practically owned by Democrats.  In a matter of days, perhaps weeks, the Democrats will no longer hold a filibuster proof majority in the Senate, which likely all but assures a death to health care legislation and a dramatic slow down in the Obama agenda.  Already Senators and Representatives on the Democrat side of the aisle are talking about perhaps slowing down on health care, perhaps even starting over, and in the meantime focusing on jobs, which is after all what the overwhelming majority of Americans want Congress and the President to do.  As a policy wonk and political observer I would love to get into a discussion about what this election means, and I have over at BlatantlyTrue.com, where I wrote MA Republican Scott Brown and his Truck Head to DC, but for the pages of IPWatchdog.com, general political discussion is a bit too much off topic.  But one story that certainly is not off topic is patent reform, so allow me to ponder what this political tectonic shift may mean for the future of patent reform, which if done right could and should lead to job growth and economic prosperity.

First, it seems appropriate to acknowledge that health care reform has been dealt a significant blow by the election of Scott Brown.  Over and over again he proudly declared that if elected he would be the 41st vote against health care in the Senate, a reference to the fact that in order to get any controversial legislation passed in the Senate it is necessary to have 60 votes.  With 60 votes a filibuster can be broken, and without 60 votes Senators opposed to legislation can simple debate forever never allowing the debate to end, thereby tying up the Senate theoretically forever.  In reality, when a filibuster is threatened no vote is typically held until there are 60 votes to close debate and move forward to a vote. The fact that Brown was elected suggests the majority of people in Massachusetts want health care stopped.  Voters knew what they were voting for and would get with Brown, and it seems extremely likely that moderate and conservative Democrats will get that message loud and clear.

It also seems likely that Brown will align himself with a majority of other Republican positions, including Cap and Trade, for example.  With no major legislative initiatives to show for 1 year in Office it seems logical that President Obama and Democrats, who control substantial majorities in both the Senate and House, would want to have at least something to campaign on during the Fall of 2010 leading up to the November 2010 mid-term elections.  Already the Democrats have seemingly staked out the bank tax issue as something that could have popular appeal, but does anyone really believe banks or corporations pay taxes?  Even if taxes go up they are passed on straight to consumers, and it seems that an indirect tax on consumers, while perhaps sounding good, likely won’t lead Democrats where they want to go in 2010.

Patent reform is hardly a kitchen table issue, although President Obama did recently give a speech discussing the Patent Office, calling the electronic filing system embarrassing.  Save for a moment that he was completely wrong factually with respect to how he claimed the Patent Office handles patent application filings.  He did talk about patents and that is interesting in and of itself.  While Presidents always talk about innovation and technology, I cannot recall any President other than Ronald Reagan discussing patents per se.  So obviously patents are on Obama’s mind, or were at least in the speech he read off the teleprompter.

Patent reform is not going to bring voters to the polls and turn out votes, or influence the votes of many, if any, voters in the mid-term election cycle.  Nevertheless, patent reform is something that could get done and would be at least an accomplishment for the President and the Congress.  On top of that, patent reform is certainly a high profile item on the agenda for many of the largest campaign donors, which means that anyone running for Congress should consider it to be a relatively safe issue that could make some important money people very happy.  With money being the life blood of politics and running a campaign, don’t under estimate the politicians desire to get on the right side of those with deep pockets.

Of course, patent reform has remained elusive and thorny, with big-tech lined up against pharma and biotech, who oddly are aligned with small businesses, manufacturers and independent inventors.  This means that even in the best of political climates any massive overhaul or radical change that would favor one group and disfavor others would be particularly tricky.  Factoring in the political tsunami that happened last night in Massachusetts suggests that many politicians, particularly Democrats up for re-election in 2010, are likely not going to want to stick their necks out to alienate big campaign donors.  After all, they are doing a bang up job alienating voters.  They simply cannot add to the list of dissatisfied by alienating those who would otherwise donate money.

While it may come as a shock to many, even in the political climate throughout the country and in Washington, DC, patent reform is not political, at least in a national sense.  Patent reform is political on a regional and local level, so there is absolutely no sense counting up the number of Democrats and Republicans and thinking that could foretell things to come should patent reform once again take center stage in Congress.

With the victory last night by a Republican in Massachusetts, every US Senate race and all 435 races in the House are up for grabs.  If a Democrat can lose in Massachusetts, and lose the seat held by the late Senator Ted Kennedy, Democrats could lose anywhere, even in California for example.  It just so happens that Barbara Boxer, US Senator from California, is up for reelection in 2010, and already Republicans are wondering “what if.”  Right now it seems uncertain exactly who will be the Republican nominee to challenge Senator Boxer, and in recent weeks with Governor Arnold Schwarzenegger taking California’s US Senators to task for agreeing to the sweetheart deal for Nebraska relative to health care legislation, I have to wonder whether he is considering a run. Even with his low approval rating counting out someone as shrewd as Arnold would not be wise. But even if he doesn’t run, there are other Republicans who are polling within a few points of Boxer, and that will likely embolden A+ caliber candidates to come to the forefront.

So why so much about Barbara Boxer? Well, she is a perfect example of someone who would be put between a rock and a hard place if patent reform legislation were to come up again. California has a vast array of businesses in the State, including large numbers of big-tech companies who support patent reform in its most radical form. It is not much, if any, of an overstatement to recognize that big-tech would prefer watered down patent rights and vastly reduced available damages when patents are infringed. This is in part because they want to maintain their dominance and start-up companies with progressive and sophisticated patent strategies can and will call that dominance into question. It is also in part because they want to stop getting sued by so-called patent trolls, or if they are sued and lose they want to pay less. However, California also has a lot of small and growing tech companies, biotech companies and many others that need strong patent rights to succeed. Simply stated, if patent reform is on the 2010 agenda in Congress she will need to walk a fine line and ultimately with a vote would upset some important constituents who vote and who donate. Not exactly a recipe for success given the trending political climate.

With the election of Scott Brown last night a lot of things will change, and I think it makes patent reform less likely to happen. If it does happen and does get back onto the radar screen it will absolutely need to focus on tweaks and changes where there is broad consensus, such as with respect to adequately funding the Patent Office, eliminating fee diversion, enhancing the IT systems thereby allowing the USPTO to better streamline examination and other reforms aimed at making the institution that is the Patent Office operate better and more efficiently. If patent reform comes back with the same radical changes that simply cannot be tolerated by so many individuals and businesses it will be just another nail in the coffin of Democrats. Eventually I think the Democrats will wise up and learn the lessons of 1994, but things definitely will get more interesting before they get any less interesting. It is indeed a great time to be a pundit!

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Posted in: Congress, Gene Quinn, IP News, IPWatchdog.com Articles, Patent Reform, Patents

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

16 comments
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  1. “The fact that Brown was elected suggests the majority of people in Massachusetts want health care stopped.”

    Actually, an exit poll taken after voters cast their ballots conducted by Rasmussen contradicts that. According to Rasmussen: “One reason the race is a bit closer than expected is that all three polls show Massachusetts voters are divided over the health care plan before Congress. The Rasmussen poll shows a very slight majority of likely voters in favor of the plan. ” http://www.rasmussenreports.com/public_content/political_commentary/commentary_by_scott_rasmussen/looking_closer_at_the_massachusetts_senate_polls

  2. Sorry that link was to a poll taken before the election, but I saw Rasmussen on Foxnews this AM say, that Mass voters favored Obamacare by 53-47

  3. Mike-

    I was just going to point that out to you as well. There were no exit polls last night, likely because MA reports so quickly the actual vote. Very high tech state.

    I saw polls last night that said that MA voters do not support Obama health care reforms. I respect Rasmussen, but it seems to me that the electorate voted no on health care. Brown went all over the state saying he was the 41st vote and would kill it, and Coakley surrogates campaigned the same way, saying a vote for Brown would make health care more difficult.

    Whatever the actuality is, even if 53% favored health care reform that is pitiful in a blue state like MA, particularly when nationwide it is close to two-thirds who oppose. It seems turnout was light in Democrat areas and heavy in Republican and Independent areas. The weather was bad, which almost always favors Republicans. Still, Kennedy won reelection with 69% of the vote and as late as 30 days ago Coakley was up 20 points on Brown in polls. The major change over that time was health care, the Nebraska and Louisiana purchases and more back room deals not on CSPAN.

    The Dems need desperately to turn the momentum, and a historically contentious patent reform bill that would alienate big contributors no matter what happens seems like an unlikely place to focus. Although I am all for encouraging patent reform we can all agree with, like more funding for the PTO and a streamlining of the patent process.

    -Gene

  4. According to the most recent polls, and tracking polls as well, the nation as a whole is nearly evenly split on health care, and those who support a public option outnumber those who do not:

    http://abcnews.go.com/PollingUnit/Politics/health-care-reform-abc-news-poll-analysis/story?id=9593912

    Where’d you get the 2/3 figure, Gene?

    best,
    David

  5. David-

    Nearly evenly split? Did you even read the article that you provided? The headline from the articles says “ABC News/Washington Post Poll: 51 Percent Oppose Reform, 44 Pecent Support.” That is nearly evenly split? Two liberal outlets run this poll and you think it is reliable? At least when the Wall Street Journal does a poll they team with NBC, which should make the poll more representative, and Rassmussen and Gallup are independent. Why didn’t you cite those numbers? Not only does your “proof” not say what you claim it says, everything else points in the complete opposite direction.

    Take a look at these…

    January 18, 2010. Rasmussen survey shows that just 38% of voters nationwide favor the health care reform plan proposed by President Obama. See:

    http://www.rasmussenreports.com/public_content/politics/current_events/healthcare/september_2009/health_care_reform

    January 19, 2010. According to MSNBC, the most liberal and biased media outlet says that only 33% say that Obama’s health care plan is a good idea. See:

    http://www.msnbc.msn.com/id/34941329/from/ET

    January 13, 2010. According to Gallup (and published on ABC’s website) Obama has 40% approval on the economy and 56% disapproval. He has 37% approval on health care and 58% disapproval. See:

    http://blogs.abcnews.com/politicalpunch/2010/01/in-gallup-poll-president-obama-at-alltime-lows-for-handling-of-economy-health-care.html

    Somewhat ironically, the FoxNews poll has the highest approval for health care proposed by Obama. In a poll released Friday, January 15, 2010, 39% of Americans favor the health care bill, although only 14% think their family would be better off under the health care reforms. See:

    http://www.foxnews.com/politics/2010/01/15/fox-news-poll-support-health-care-increases-oppose/

    Even the left leaning Huffington Post is piling on Obama, pointing out that he fulfilled only 91 of his 502 campaign promises, with 14 promises broken and another 87 as stalled. They also give him a D on the Economy and a D on Health care. No one is happy with Obama, and the MA voters made that abundantly clear.

    http://www.huffingtonpost.com/jonathan-merritt/grading-obama-one-year-la_b_429600.html

    In the future, please stick to the facts and please don’t intentionally mislead by erroneously claiming you have proof when the proof does not back up what you say.

    -Gene

  6. Gene,

    I think Patent Reform could be a politically winning issue if it is packaged as part of reinvigorating US innovation and the economy. The US is now ranked as the 8th most free country economically and 8th in an innovation index. The US is falling in both surveys. We are also no longer number one in per capita income or per capita income among major nations. This is quite a change from just a decade ago. Clearly something changed and it was not just the financial crisis.

  7. if 51 to 44 isn’t nearly even, then the 41 (vs. 59) minority the Republicans now enjoy in the Senate is surely nothing to get too excited about, Gene. And it’s a far cry from the 2/3 figure you stated without citation.

  8. and most opponents of the current bill tend to think it doesn’t go far enough in expanding coverage:
    http://theplumline.whorunsgov.com/health-care/poll-more-think-health-care-reform-isnt-ambitious-enough/

  9. David-

    You say: “the 41 (vs. 59) minority the Republicans now enjoy in the Senate is surely nothing to get too excited about…”

    Do you understand how the Senate works? With 41 votes the Republicans can now stop any piece of legislation they want. Sweeping legislation in the US has always been done in a bipartisan fashion, except for under Obama. Even with a majority in the House and a filibuster proof majority in the Senate he was unable to pass his agenda. So for those who understand US politics and how the Senate operates, 41 Republicans in the Senate is indeed something to be VERY excited about.

    With about 1/3 of the country supporting Obama’s health care agenda, which is documented in poll after poll after poll, my two-thirds figure is far closer to reality than you saying there is an even split. Even assuming the one poll that says 44% support that you cite, which is the lone poll showing anything in the 40s, in election terms that would be a landslide.

    -Gene

  10. David-

    You say: “most opponents of the current bill tend to think it doesn’t go far enough…”

    Believe what you want, but the overwhelming majority think it goes too far. I hope that the Democrats accept your incorrect view of things though. Now that there are 41 votes in the Senate it won’t happen, and if the Dems keep pushing claiming that it doesn’t go far enough the Republicans will take back both the House and the Senate in 2010, followed by reclaiming the White House in 2012.

    -Gene

  11. don’t get sarcastic, I know full well how the Senate works, and the power of the filibuster.

    but you’re 2/3 figure (uncited) is off by 10% …. 33% is 1/3, 66% is 2/3… 51% is close to half. It’s just math, is all.

    anyway, good luck with your superminority! welcome back to gridlock.

  12. Ah, Patent Reform! The bill to reform the patent system the way Hitler reformed German civil rights.

  13. Yes David, it is just math, and you ignore all the other polls I presented showing those who want Obamacare in the one-third range. So you can in an arrogant and condescending way pretend you were correct and I cannot do math, but we all know the truth. Numbers are what they are, and poll after poll shows that only about 35% of the US wants Obamacare, and only 47% of those in MA, perhaps the most liberal of all states, want Obamacare enough to get out and vote. Brown made it clear he would stop Obamacare and was still elected with 52% of the vote.

    What I find amazing is how folks don’t think 52% of the vote is an overwhelming victory. When it was Obama and it was 52.9% it was an overwhelming victory and an unprecedented mandate. See HERE for the breakdown in vote for Obama vs. McCain, which was essentially 53% to 46%, not much different than 52% to 47%, which was the vote in MA against the Democrat.

    I asked whether you knew how the Senate worked because you incorrectly stated that 41 Republican votes was nothing to get excited about, when it clearly is something to get excited about. So the only reason you wouldn’t be excited is if you agree with the one-third minority of people in the US or you don’t understand how the Senate works.

    Back to gridlock! Amen to that! Government screws far more up than they every fix, and reordering 17% of the US economy while the overwhelming majority of Americans are yell STOP is staggeringly irresponsible. Thank goodness for gridlock. At least Congress won’t be able to do any more harm.

    -Gene

  14. Dear Gene,

    Enjoy this victory, and I hope 2010 recapitulates 1994, so that 2012 recapitulates 1996.

    peace,
    David

  15. David-

    I would be more than happy for a replay of 1996 in 2012. President Clinton moved to the center and worked with Republicans and did a lot of things that made sense. Clinton learned that in the US there are only about 20% who are liberal and want a radical agenda, and well over 50% that are either center left, center and center right. When the middle works together the country works very well. So if Obama wants to become more Republican, like Clinton did, that would be wonderful. After all, if you listen to Clinton’s speeches post 1994 most of them could have been given by Reagan, at least on fiscal policy, taxes, welfare reform and other topics.

    We don’t have to worry about Obama running plays from the Clinton playbook though, and I suspect you know that. He is a radical liberal, as evidenced by all those he surrounded himself with throughout his political career. Even picking Emmanuel to be his Chief of Staff indicated he wanted a scorched earth, ram it down your throat Chicago style politics to embed itself in DC. Obama cares less about getting reelected than getting his agenda, which is why the White House is still saying full steam ahead.

    Unlike Clinton, Obama is an elitist academic liberal who thinks he knows better. He compares his bowling game to the Special Olympics, says Americans cling to their gods and guns and mock people who drive trucks. He is out of touch completely, and even if he tried to recast himself it wouldn’t work. He has betrayed all the independents who voted for him, thinking he offered change. Little did they know that the change he offered was radical and far worse than anything we have ever seen.

    -Gene

  16. If patent reform does make it onto the agenda, let’s hope Congress will finally consider addressing (or at least mentioning) the issue of patent trolls: http://www.generalpatent.com/media/videos/patent-troll