Congressman Darrell Issa: A well-financed ally of the efficient infringer lobby

Rep. Darrell Issa (R-CA), House IP Subcommittee chair

In recent months Congressman Darrell Issa (R-CA), chairman of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, has been particularly vocal about activities relating to the U.S. patent system. As the top patent owner and richest member of Congress, Issa could be expected to have influential views on patent rights and how they can be leveraged to achieve business success. Knowing he is a patented inventor himself, one might initially be lead to believe he is sympathetic to the plight of independent inventors, start-up companies that requires strong patents to survive, and research and development companies working on everything from cures for cancer to mind-blowing artificial intelligence systems that replicate science fiction at its best.

Yet Issa takes a very dim view of patent owners who actually seek to enforce their patent rights despite the fact that the company he founded was a plaintiff itself in patent cases where Issa’s patents were asserted. Exactly what good is a patent in 2017 if you are not willing to enforce it? None whatsoever. Between Congress establishing the death squad known as the Patent Trial and Appeal Board (PTAB) and the U.S. Supreme Court overruling three decades of well-settled law pertaining to patent eligibility, innovators have been under siege. The licensing market has dried up, so the only way a patent owner has any hope against recalcitrant infringers (of which there are many) is to sue.

But sue as a patent owner and suddenly you are a bad actor, perhaps even a patent troll. At least according to Congressman Issa who, last April, actually said on the record that “plaintiffs” and “patent trolls” were “interchangeable” terms.  Never mind that Issa has labeled every plaintiff in a patent case as a patent troll.

If all plaintiffs are trolls, then Issa must think that every plaintiff is a “scourge of the patent world”; that is, at least, according to his statements in a hearing this June following the U.S. Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC. In hearing after hearing, Issa continues to rail against “patent trolls” in a way that directly flies in the face of his own experiences as an inventor and CEO.

But exactly what good is a patent unless you are willing to enforce the exclusivity granted when wrongdoers, who the patent system calls infringers, trespass on your rights and trample upon the patent granted by the federal government itself? An exclusive right requires exclusivity and the only way recalcitrant infringers who engage in the game of efficient infringement can be stopped is by suing them in federal district court. But exercise your right to protect property under the U.S. Constitution and Congressman Darrell Issa calls you a patent troll and a “scourge of the patent world.”

So why does Congressman Issa seem to despise inventors? Perhaps the better question is how much does it cost to get a U.S. Congressman to take a stand on a topic?

According to lobby financing database OpenSecrets.org, telecom giant AT&T (NYSE:T) has contributed $85,100 to Issa during his Congressional career, the vast majority of which comes from political action committee (PAC) funding. That makes AT&T the second-largest contributor of funds to Issa during his time in D.C. AT&T has focused a good deal of lobbying on S.1137, the PATENT Act, and H.R.9, the Innovation Act (of which Issa is an original co-sponsor), filing a total of 12 lobbying reports on either bill during the 114th Congress (2015-16), according to OpenSecrets. Both of those bills are notable for a number of provisions that would stifle the rights of patent owners. As one of the lobbying reports filed by AT&T shows, the company paid lobbyists to forward its interests on issues related to “patent reform, particularly with respect to venue, damages and other litigation issues” with regards to both bills. AT&T has also recently been seen in the U.S. Court of Appeals for the Federal Circuit on patent matters in that court’s 2016 decision in BASCOM Global Internet v. AT&T Mobility LLC, a decision that vacated a district court’s finding of invalidity of a patent asserted against AT&T under the standard from Alice Corporation v. CLS Bank International, so it’s not a stretch to suggest that AT&T’s lobbying efforts are not on behalf of patent owners.

The 5th-largest funding contributor to Issa has been Microsoft Corp. (NASDAQ:MSFT), contributing $61,500 over his career, again mostly through PACs. During the 114th Congress, Microsoft filed 16 lobbying reports on the PATENT Act and 13 reports on the Innovation Act. A Microsoft lobbying report indicates that its lobbyists focused on patent litigation reform for S.1137, H.R.9 and S.2733, the Venue Equity and Non-Uniformity Elimination (VENUE) Act, a bill targeting 28 U.S.C. 1400(b), the statute governing proper venue in patent cases which was the focus of the Supreme Court’s recent decision in TC Heartland. Similar stories could be told about Issa’s former organization, the Consumer Technology Association ($58,500, 100 percent through PACs); Bank of America (NYSE:BAC) ($54,600 total, $37,100 in individual contributions, $17,500 through PACs); the Internet and Television Association (NCTA) ($53,500 total, 100 percent through PACs); and, appearing a little further down the list, a stalwart of the efficient infringer lobby, Google (NASDAQ:GOOGL) ($47,145 total, $20,145 in individual contributions, $27,000 through PACs).

With all of this money, it seems the efficient infringer lobby has managed to find an unlikely ally in Congress — someone who made his money as an innovator who defended his patents as a patent plaintiff, which apparently makes him a patent troll.  At the end of the day, it may not be entirely fair to characterize Congressman Darrell Issa as a patent troll. Instead, he seems more of a swamp creature of the type that President Trump campaigned against: an individual who has fed from those who are actively trying to muck up the U.S. patent system in favor of large, entrenched entities and to the disadvantage of small, innovative patent owners who have previously always been the driving force of innovation and job creation in America.