Who is Manus Cooney? Those in Washington, DC, know the name well, but many practitioners in the intellectual property space are probably not well acquainted with Cooney, but Manus Cooney is a name you should know if you are at all involved in the world of intellectual property.
Cooney is a prominent behind the scenes player in Washington, DC. He is a partner in the American Continental Group, a D.C. based consulting and lobbying firm that boasts one of the most prominent IP practice groups in town. His partners include Marla Grossman, who was an IP counsel for Senate Judiciary Committee Chairman Senator Patrick Leahy (D-VT), and Chris Israel, who was the nation’s first U.S. Coordinator for International IP Enforcement — the first IP Czar. Philosophically, ACG tends toward the pro-IP side, so it is not surprising that many of the clients they represent are interested in securing and promoting a strong IP regime both in the U.S. and abroad. In short, Cooney and others at ACG fight the good fight, helping content creators and innovators convey their message in the halls of Congress.
Cooney is an attorney who after a brief stint in a law firm at the beginning of his career decided he wanted to work on Capitol Hill. He took a job as a law clerk on the Senate Judiciary Committee and quickly translated that position into a counsel position. Eventually he became the Chief Counsel and Staff Director of the Senate Judiciary Committee. In that position he worked closely with Senator Orrin Hatch (R-Utah), who was then the Chair of the Senate Judiciary Committee. This is when and how Manus Cooney learned the art of advancing legislation through Congress.
Cooney and the American Continental Group were intimately involved in working behind the scenes on the America Invents Act (AIA), as well as the predecessor legislation that was circulating through Congress for years before it ultimately passed. With the anniversary of the passage this month I asked Manus if he would go on the record to talk about his experiences, legislation and lobbying in general, as well as what is on the horizon for the future.
On September 7, 2012, Manus and I spoke at length. One of the things we discussed was his involvement with the AIA and patent legislation in general. Cooney explained that he initially became involved when Tessera Technologies contacted him after legislation was submitted. Cooney explained: “Tessera, QUALCOMM, InterDigital and a few other companies were talking about trying to put together a coalition to at least inform the Congress about the importance of patent licensing to the U.S. economy and to innovation generally and to ensure that whatever the Congress might do insofar as patent reform was concerned would be done with the concerns of the licensing business model in mind.”
But what is the role of the lobbyist? What does a lobbyist do? Cooney told me that registered lobbyists, like he is, can do a variety of different work. “There’s a perception out there that a lobbyist is simply a fundraiser and door opener ,” Cooney explained. “While many lobbyists certainly do some fundraising, ACG is retained principally because of our collective, bipartisan experiences in knowing how legislation and regulations gets enacted, corrected, or stopped. . And it’s our experience, knowledge, and reputation that permits us to be in the loop, so to speak, as legislation and regulations are being developed here in Washington.”
As we moved forward recalling the events leading up to the enactment of the AIA we discussed how fast things would move, then they would seem to stall. Then all of the sudden everything would heat up again. At the very end everything was moving in such a rapid fire manner it was difficult for me to keep up with the latest draft, the latest Amendments, the last statements made on the floor. I asked, is there any realistic way to keep up with the frantic pace of legislation moving that fast without actually be in D.C.?
“It’s important that – to the extent IP policy affects your business interests- you pay attention to what happens in DC. Whether one needs to actively engage the process depends. But, if one wants to effect policy – improve the law or prevent someone else’s proposed improvements – you need to have people here on the ground who are walking the halls, who are going to meetings and working with and know the staffers and Members of Congress who are involved in developing the legislation,” Cooney explained. “Simply because a particular bill isn’t being reported on or covered in IPWatchdog or some other publication doesn’t mean that nothing is happening. 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.”
It is what Cooney told me next that caused the light bulb to go off for me. Cooney said:
By the time a bill reaches the floor, most of the significant decisions have already been made. And most of the significant informed stakeholders have already taken a position one way or the other on that product. And then it’s just a matter of executing the fight. Trying to come into o 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.
So how many meetings was Cooney personally involved in relating to the AIA? “Literally hundreds.” There is no wonder why so many of those who were later comers to the AIA debate last year had their concerns fall on def ears. Those who care enough about a particular piece of legislation have been engaged in the process for months, if not years. They did not just arrive at the last minute to protest or state a position. They have listened and engaged in efforts to persuade that go back a long way.
While many may think they know what lobbying is all about, as I did, I have to confess that my vision of lobbying was very different from reality, although after you hear it explained it does seem obvious. Lobbying is not just about advocating a position. Rather, lobbying is about listening, understanding the concerns of Congress and of particular Members, and then engaging in persuasive advocacy taking into consideration what you have learned. The goal is to try and put the best case forward for your client, but at the end of the day you have do to it in a way that makes it as easy as possible for Congress, and Members, to agree. This requires both a relationship and active engagement on the issues over a long period of time.
One particular question and answer sequence from our conversation was particularly enlightening.
QUINN: During those hundreds of meetings you are not just going there and saying ‘this is what we want you to do.’ You are using these meetings in order to fact find, right? To find out what the concerns are and why they may be motivated to do certain things so that maybe you could provide them with an alternative viewpoint?
COONEY: Correct. The challenge oftentimes in dealing with public policy issues first of all is getting your client to define his or her issue in a way that Members of Congress can actually assist them. In other words, it doesn’t do any good to walk into a Member’s office and ask her to lay in front of a speeding train and be the only Member who is going to vote against a bill.
So much of what you’re doing first and foremost is informing Members of Congress of your position and trying to get them to accept the notion that what you’re advocating is in their constituents’ or the nation’s interest, is legitimate and sound policy, and – here’s the part too many miss – is politically achievable. Most assume that if what they are advocating is a good idea, it will get done.
And in the process of those meetings and that advocacy you’re learning where various Members are, where the Leadership is on a particular issue, and where the key staffers are with respect to the issue. And you’re developing a strategy in response to that. If it’s pretty clear that the Chairman and the Leadership are dead set against your position, then you have to figure out another way forward. Is it better to cut your losses say, in the House, and perhaps live to fight another day perhaps in the Senate?
This is a skill set that one learns over a period of years, obviously. You need to keep your eye on the ball – the fundamental policy goals of your client – all the while going through this process. We are always trying to stay true to what is in our clients’ best interests in a process that, sometimes, is stacked against them. Helping them to define and refine their objectives and, eventually one hopes, achieve victory is at the heart of what it is we’re trying to do and what makes it so interesting.
Thus, it seems clear to me after talking with Cooney that lobbying is quite different than what I thought. It is also clear that those who want to have a say in the outcome of legislation need to be engaged quite early in the process. I suppose I figured that out as I was watching all the Amendments die one after another in the House last September. It was as if the end result was already determined – because on many issues it was already determined. The final public stages we see on CSPAN are oftentimes the culmination of countless hours of examination, discussion, and consideration, in hearings held in public and in working meetings held in private where citizens and corporations explain their positions, listen and then circle back to engage in more persuading. It is unrealistic to think you can come in at the 11th hour and make a difference, no matter how much sense your position makes.
Stay tuned for part 2 of my conversation with Manus Cooney. In part 2 we will discuss the passages of the AIA and where the fight for patent rights is heading. Cooney takes head on the perceived “patent troll problem,” and the reality that some large IT companies “arguably [want] to weaken the enforceability of patents…”