Manus Cooney, former Chief Counsel to the Senate Judiciary Committee and a prominent DC lobbyist.
Last week I published part 1 of my conversation with Manus Cooney, who is one of the preeminent intellectual property lobbyists in Washington, D.C. Cooney, a former Chief Counsel to the Senate Judiciary Committee, is currently a partner with American Continental Group and was intimately involved in lobbying Congress relative to the America Invents Act (AIA), primarily on behalf of his client Tessera Technologies, who aligned themselves with the Innovation Alliance.
In part 1 we discussed lobbying in general, shining some light on the process as a whole and explaining why it is unrealistic to expect you can enter the debate near the end and have any hope of affecting change. In part 2, which is reproduced below, we discuss the specifics of lobbying the AIA, as well as the fight against further erosion of patent rights. And you thought that patent reform was over. Sadly, the fight continues.
COONEY: Going back to the AIA, when it comes to passing legislation, it’s important to know how each of the Congressional bodies work. It may be an oversimplification but it is usually the case that whatever the House Majority Leadership wants to pass, it usually gets done. In the Senate, however, it’s different because of its rules. There, whatever the Majority wants to pass has a shot at getting done. In other words, if the House Leadership, the Republicans in this case today, and the Chairman of the Committee want to see a particular measure passed, more often than not, particularly on an issue as esoteric and complex as patent law, the party members of the majority party are going to adhere or defer to the wishes of Leadership, And as a result, you’re trying to either create a situation in advance of the House measure coming to the floor where you have the support of the Leadership or you have created an environment where it’s less certain to the House Leadership and the Chairman that they will in fact be able to prevail, and thereby create an environment where they have to negotiate. Oftentimes in the House, your laying the foundation for a fight in the Senate where there is less deference to the Leadership. The rules are such that, in theory, any Senator can offer an amendment to any bill at any time, and you have a better shot at winning on the merits, so to speak. That has a way of forcing consensus. So realizing that those tend to be the ground rules, the landscape you’re dealing with, you develop a strategy for your clients.
Manus Cooney, former Chief Counsel to the Senate Judiciary Committee and a prominent DC lobbyist.
Manus Cooney is a formidable figure. He stands 6’3”, is the consummate professional, highly intelligent and very personable. He is the type of person you notice when he walks into a room.
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.
Back from its extended August recess, Congress has some unfinished business to settle before the end of the calendar year, such as funding the Federal Government for FY 2013 and addressing expiring Bush tax cuts.
Though they are unlikely to take center stage during the truncated session before elections or the post-election lame duck session, lawmakers will have to contend with several key copyright issues during the 113th Congress. Thus, no matter who wins on November 6, IP leaders in the House and Senate are likely to use the remainder of this calendar year to set the stage for next year’s copyright agenda.
The priority copyright issues for the remainder of 2012 and 2013 are: (1) Anti Piracy Initiatives; (2) Internet Issues; (3) International Agreements; (4) Music Licensing; (5) Book Licensing; and (6) TV Broadcast Issues. Each is discussed more fully below.
Before the ink has dried on the America Invents Act, a new patent bill was recently introduced in Congress. The bill, dubbed the SHIELD Act (Saving High-Tech Innovators from Egregious Legal Disputes Act) or HR 6245, is sponsored by Congressmen Peter DeFazio, D-Ore., and cosponsored by Representative Jason Chaffetz, R-Utah. This act appears to be a major assault on patentee (patent holder) rights.
The bill introduces new Section, 35 U.S.C. 285A, which reads in part as follows:
“(a) In General- Notwithstanding section 285, in an action disputing the validity or alleging the infringement of a computer hardware or software patent, upon making a determination that the party alleging the infringement of the patent did not have a reasonable likelihood of succeeding, the court may award the recovery of full costs to the prevailing party, including reasonable attorney’s fees, other than the United States.”
The bill has been promoted as a “balanced” bill, addressing plaintiffs’ and defendants’ issues alike. However, it is no such thing – it is designed to shut off patentees, and only patentees.
In my first article, I posed the question whether the “Smart Phone Patent Wars” were giving IP rights – and more specifically, patents – a bad rap? My conclusion was an unfortunate “yes,” with the villains being a handful of companies that willingly contributed patented technologies to various standard setting organizations (SSOs), encouraged their use in a host of consumer electronics, and years later charge the very producers they encouraged to implement these standards with patent infringement. In my second article, I examined the so-called “Fair, Reasonable and Non-Discriminatory” (FRAND) licensing terms that SSOs require of their participants and concluded the phrase has no clear, widely-accepted definition or standards for determining compliance. In my third article, I examined the patent policies of four major SSOs and concluded that none offered any clear guidance on what constitutes a FRAND license leading to unnecessary and counterproductive litigation. In my fourth article, I made a few observations among the flurry of activity as to the market effects of these patent wars. Now, I report on potential congressional action on the horizon and the increasing focus on the U.S. International Trade Commission (ITC).
Pew Research recently reported that 46.0% of Americans now own a smartphone device, making them more commonly owned than regular, basic mobile telephones. This ownership figure rises to 66% for the sought-after consumers population aged between 18-29. Thus, there is no surprise that the smart phone patent wars rage on, and members of Congress have noticed.
Editor’s Note: What appears below are the prepared remarks of Bernard J. Cassidy. Mr. Cassidy testified earlier today before the House Committee on the Judiciary’s Subcommittee on Intellectual Property, Competition and the Internet. The Hearing was on “The International Trade Commission and Patent Disputes.” Mr. Cassidy’s remarks are published here with his permission.
Chairman Goodlatte, Ranking Member Watt, and Members of the Subcommittee,
My name is Bernard J. Cassidy, and I am Executive Vice President and General Counsel at Tessera Technologies, Inc., which is headquartered in the heart of Silicon Valley, in San Jose, California. We have facilities in Charlotte, North Carolina, Rochester, New York, and Arcadia, California as well as in Europe and Asia. I deeply appreciate this opportunity to speak before you regarding the importance of the International Trade Commission to my company and our innovation economy.
“Man controlling trade” outside ITC in Washington, DC, by New York sculptor Michael Lantz (1942).
On Wednesday, July 18, 2012, the Committee on the Judiciary in the United States House of Representatives will hold a hearing titled “The International Trade Commission and Patent Disputes.” The hearing will take place at 10:00 AM in the Rayburn House Office Building, and will take up recommendations by those in the infringer lobby who feel the International Trade Commission must be reigned in and stripped of much of its patent authority. Yes, those who no longer innovate but find it easier to copy want to make it much more difficult to prevent infringing products from entering the United States. Hopefully their efforts will not succeed.
The proposal is modestly (and misleadingly) titled “Modernizing the ITC Patent Process to Ensure Consistent Application of US Patent Law.” Those who seek to weaken the U.S. patent system so that it is easier for them to infringe without consequence are making the argument that the ITC does not apply patent laws the same way as other courts do and are a haven for non-practicing entities seeking to prevent infringing products from entering the United States. Imagine that? A patent owner who wants to prevent infringing products from entering the United States.
Washington, D.C. (June 21, 2012) – BIO commends the House of Representatives for its unanimous approval of S. 3187, the Food and Drug Administration Safety and Innovation Act (FDASIA), which includes a reauthorization of the Prescription Drug User Fee Act (PDUFA).
We appreciate the leadership of Senate Health, Education, Labor and Pensions Committee Chair Tom Harkin (D-IA) and Ranking Member Mike Enzi (R-WY) as well as of House Energy and Commerce Committee Chair Fred Upton (R-MI) and Ranking Member Henry Waxman (D-CA) in reconciling the differences between the user fee packages adopted by the two Chambers and for securing unanimous approval in the House.