On Thursday, August 3, 2017, the United States Senate, through a deal brokered by leaders McConnell (R-KY) and Schumer (D-NY), voted out dozens of Trump nominees under a unanimous consent agreement. Under this procedure there is no individual or “roll call” votes or floor debate on a nominee. There was, however, some “hipster” controversy.
Despite the nonpartisan conclusion to this slew of nominees there is an interesting partisanship between Hollywood and Silicon Valley emerging. With the tech industry ramping up their lobbying spending during the first six months of the Trump Administration and with reports indicating that patents remain a top priority, the next six months may reveal areas of common ground and further division for industries and companies. During the next six months there will be activity on trade with China involving IP. Congress will turn to tax reform and will need to find new areas for cuts and revenue increases now that ACA reform has not yet happened. Patent reform legislation could move given the attention to PTAB abuse by the US Supreme Court, with the High Court granting cert in both SAS Institute and Oil States, see here and here, respectively.
Of particular note for the intellectual property community, Vishal Amin was confirmed to be the IP enforcement coordinator at the White House and Peter Davidson was confirmed to be general counsel at the Commerce Department.
Amin had been a lawyer for Congressman Lamar Smith (R-TX) working on the AIA and then for Congressman Bob Goodlatte (R-VA) working on the Innovation Act. Therefore, Amin has been in the middle of IP legislation since President Obama took office in January 2009. Before that he worked in the Bush White House and Commerce Department on patent reform and IP issues. Amin generally favors the Patent Trial and Appeal Board (PTAB) and going after patent trolls. He has been strongly endorsed by the film, music and traditional copyright interests, which puts him at odds with the tech community on copyright, Internet freedom and even, perhaps, cybersecurity issues (think proposals from Hollywood to enable proactive hacking to stop circumvention of copyright protection measures). Because of his support for the PTAB and close association with the AIA and Innovation Act the independent inventor community opposed Amin for this position, which is sometimes referred to as the IP Czar.
Davidson, a former lobbyist for Verizon, USWest and Qwest, was also general counsel for the US Trade Representative and head of policy for then House majority leader Dick Armey (R-TX). Davidson also clerked on the 10th Circuit. Given the role Commerce Secretary Wilbur Ross now plays on trade issues and given the news this week of Trump going after China on trade violations including patents, Davidson’s USTR background should keep him involved in this front line issue.
Another nominee confirmed yesterday that is definitely worth noting and so far ignored by POLITICO, IPO, AIPLA and others is Michael Platt, Assistant Secretary of Commerce for Legislative & Intergovernmental Affairs. Platt comes to the job with a rich experience in government and industry working with all sides of the IP debate. He was chief of staff for Congresswoman Marsha Blackburn (R-TN) who tirelessly advocates for artists and creatives from Nashville and nationally. According to the White House, Platt also “helped direct bi-partisan advocacy promoting the creative and financially viability of artists and major music companies for the Recording Industry Association of America.” Platt also understands Silicon Valley thanks to his time working for TechNet. The Assistant Secretary for Intergovernmental Affairs has played a key role in patent reform in years past.
The “hipster” controversy yesterday has to do with the delay of Makan Delrahim, the nominee to head up the Antitrust at the Department of Justice.
Senator Hatch (R-UT), Delrahim’s former boss, loudly protested on the Senate floor, accusing Democrats of holding up Delrahim by using “hipster” antitrust views to apply scrutiny to deal approvals and to the growing power of the large tech companies.
Another exception from yesterday’s confirmation blitz was Noel Francisco, Trump’s nominee to be Solicitor General. He was acting Solicitor General early on for Trump and then left that post when nominated, as required by Supreme Court precedent. He is a former Jones Day partner, the same law firm as Don McGahn, who is now Trump’s campaign general counsel and is now White House Counsel. Perhaps noteworthy for the patent industry, Jones Day also represents SAS Institute in their lawsuit challenging whether the Patent Trial and Appeal Board (PTAB) must issue a final written decision on all claims challenged, as is required by the statute. SAS Institute v. Matal will be argued against the USPTO at the Supreme Court during the October 2017 term.